THE 


UNITED  STATES  AND  THE  STATES 


UNDER  THE  CONSTITUTION, 


BY 


C.  STUART  PATTERSON. 


SECOND  EDITION, 


WITH    NOTES  AND   REFERENCES   TO 
ADDITIONAL   AUTHORITIES, 

BY 

ROBERT   P.    REEDER, 

OF  THE   PHILADELPHIA   BAR. 


PHILADELPHIA : 

T.  &  J.  W.  JOHNSON  &  CO. 

1904. 


* 


o,^ 


COPYRIGHT,  1904, 
By  C.  STUART  PATTERSON  and  ROBERT  P.  REEDER. 


To 

EDWARD  PATTERSON,  LL.  D., 
A  JUSTICE  OF  THE  APPELLATE  DIVISION 

OF  THE 
SUPREME  COURT  OF  NEW  YORK, 


I    AFFECTIONATELY   DEDICATE   THIS   BOOK. 


C.  STUART  PATTERSON. 


PEEFACE. 

While  this  is  a  second  edition  of  a  book  published  in 
1888,  it  is  to  a  great  extent  a  new  book.  The  text  has 
been  not  only  revised,  but  largely  rewritten.  The  text 
is  exclusively  my  work,  but  the  references  in  the  notes  to 
the  later  cases  are  entirely  the  work  of  Mr.  Reeder,  who 
has  prepared  the  table  of  cases  and  the  index,  and  who 
has  kindly  read  all  the  proofs. 

My  hearty  acknowledgments  are  due  to  Mr.  Reeder 
for  the  valuable  assistance  which  he  has  rendered  to  me, 
and  also  for  very  many  pertinent  suggestions  which  I 
have  adopted,  and  which  have  given  to  the  text  much  of 
any  value  it  may  have. 

C.  S.  P. 


Philadelphia, 
1st  Oct.,  1904. 


CONTENTS. 


CHAPTER  I. 

THE  EELATION  OF  THE  STATES  AND  OF  THE  TEEEITOEIES 
TO  THE  UNITED  STATES  AND  TO  EACH  OTHEE. 

1.  The  sanction  of  the  Constitution. 

2.  The  indissolubility  of  the  Union. 

3.  The  autonomy  of  the  states. 

4.  The  delegated  character  and  limited  powers  of  the  government  of  the 

United  States. 

5.  The  federal  supremacy. 

6.  The  restraints  upon  the  states. 

7.  The  force  and  effect  of  the  preamble  to  the  Constitution. 

8.  The  territories. 

CHAPTER  H. 

THE    IMPLIED    POWEES. 

9.  The  necessity  of  their  existence. 

10.  Their  constitutional  recognition. 

11.  The  test  of  the  relation  of  the  means  to  the  end. 

12.  Illustrations  of  the  exercise  of  the  implied  powers. 

13.  The  legal  tender  question. 


CHAPTER  in. 

TAXATION. 

14.  Taxation  defined  and  limited. 

15.  Taxation  by  the  United  States. 

16.  Eestrictions  upon  federal  taxation. 

17.  Taxation  of  exports. 

18.  Direct  taxation. 

19.  Eequirement  of  uniformity. 

20.  Taxation  in  the  territories. 

21.  Exemption  of  state  agencies  from  taxation  by  the  United  States. 

22.  Charges  which  are  not  taxes  exempt  from  constitutional  restraints. 

vii 


Vlll  CONTENTS. 

23.  Taxation  by  the  states. 

24.  Expressed  restraints  upon  state  taxation. 

25.  Implied   restraint   upon   state   taxation   resulting  from   the   federal 

supremacy. 

26.  Taxation  of  national  banks. 

27.  State  taxation  as  affected  by  the  prohibition  of  the  impairment  of 

the  obligation  of  contracts. 

28.  State  taxation  as  affected  by  the  grant  to  Congress  of  the  power  of 

regulating  commerce. 


CHAPTEE  IV. 

THE    EEGULATION    OF    COMMEECE. 

29.  The  constitutional  provisions. 

30.  The  historical  reason  for  the  provisions. 

31.  Commerce  defined. 

32.  Eegulation  of  commerce  denned. 

33.  The  general  principles  denning  the  limits  of  national  and  state  regu- 

lation. 

34.  The  internal  commerce  of  a  state. 

35.  Navigable  waters  and  the  soil  under  them. 

36.  Preferences  of  ports. 

37.  Duties  upon  exports. 

38.  Duties  upon  tonnage. 

39.  Port  dues. 

40.  Pilotage. 

41.  Eegulation  of  navigation. 

42.  Port  regulations. 

43.  Quarantine. 

44.  Ferries. 

45.  Bridges  and  dams. 

46.  Improvements  of  navigation. 

47.  Wharves  and  piers. 

48.  State  duties  upon  imports  and  exports. 

49.  State  inspection  laws. 

50.  Taxation  discriminating  against  goods  from  other  states. 

51.  The  original  package  doctrine. 

52.  Transportation:    (a)    State  regulation  in  the  exercise  of  the  police 

power;   (b)  Eegulation  by  taxation;   (c)  The  Interstate  Commerce 
Act. 

53.  The  Anti-trust  law. 

54.  Telegraphs. 

55.  Commerce  with  the  Indian  tribes. 


CONTENTS.  IX 

CHAPTEE  V. 

THE    IMPAIEMENT    OF    THE    OBLIGATION    OF    CONTEACTS. 

56.  The  prohibition  affects  only  state  laws. 

57.  The  term  "law"  defined. 

58.  Judgments  of  state  courts  not  conclusive  either  as  to  the  non-existence 

or  non-impairment  of  contracts. 

59.  The  obligation  of  a  contract  defined. 

60.  Legislation  as  to  remedies. 

61.  The  term  "  contracts "  defined. 

62.  State  insolvent  laws. 

63.  Judgments  as  contracts. 

64.  Municipal  taxation. 

65.  History  of  the  prohibition. 

66.  State  grants. 

67.  Express  contracts  of  exemption  from  taxation. 

68.  Express  grants  of  peculiar  privileges. 

69.  Contracts  between  a  state  and  its  political  subdivisions. 

70.  Implied  contracts  in  charters  of  incorporation. 

71.  Implied  corporate  exemption  from  taxation. 

72.  Implied  grants  of  peculiar  privileges. 

73.  'Exemption  from  the  operation  of  the  police  power. 

74.  Contracts  as  to  matters  of  public  concern. 

75.  The  withdrawal  by  a  state  of  its  consent  to  be  sued. 

76.  The  force  and  effect  of  the  prohibition  as  construed  by  the  Supreme 

Court. 

CHAPTEE  VI. 

EX  POST  FACTO  LAWS  AND  BILLS  OF  ATTAINDEE. 

77.  The  constitutional  provisions. 

78.  The  distinction  between  retrospective  and  ex  post  facto  laws. 

79.  Ex  post  facto  laws  denned. 

80.  Illustrations  of  ex  post  facto  laws. 

81.  Illustrations  of  laws  which  are  not  ex  post  facto. 

82.  Bills  of  attainder  and  bills  of  pains  and  penalties. 


CHAPTEE  VII. 

THE    PEOHIBITION    OF    STATE    BILLS    OF    CEEDIT. 

83.  Bills  of  credit  defined. 

84.  What  are,  and  what  are  not,  bills  of  credit. 


C  CONTENTS. 

CHAPTER  VHI. 

STATE    COMPACTS. 

85.  What  compacts  are  permitted,  and  what  are  forbidden. 

CHAPTER  IX. 

FUGITIVES    FEOM    JUSTICE. 

86.  The  constitutional  provision. 

87.  The  concurrent  jurisdiction  of  the  federal  and  state  courts. 

CHAPTER  X. 

THE  JUDICIAL  POWEE. 

88.  The  constitutional  provisions. 

89.  The  theory  of  a  judicial  system  under  the  common  law. 

90.  The  necessity  of  a  federal  judiciary. 

91.  Cases  in  law  and  equity,  etc. 

92.  Cases  affecting  ambassadors,  etc. 

93.  Admiralty. 

94.  Controversies  to  which  the  United  States  shall  be  a  party. 

95.  Controversies  between  citizens  of  different  states. 

96.  Controversies  between  two  or  more  states. 

97.  Controversies  between  a  state  and  citizens  of  another  state,  etc. 

98.  Federal  jurisdiction. 

99.  Exclusive  and  concurrent  jurisdiction. 

100.  The  courts  of  the  United  States. 

101.  Original  jurisdiction. 

102.  Appellate  and  supervisory  jurisdiction. 

103.  The  necessity  of  a  judicial  "case." 

104.  The  federal  judiciary. 

105.  The  federal  supremacy. 

106.  Constitutional  and  statutory  construction. 

107.  Judgments  of  courts. 

108.  Treaties. 

109.  The  law  administered  in  the  federal  courts. 

110.  Courts  martial  and  impeachments. 

111.  The  3V  Amendment. 

112.  The  Y  Amendment — (a)  Due  process  of  law;   (&)  Jeopardy,  etc. 

113.  The  VI  Amendment. 

114.  The  VII  and  VIII  Amendments. 

115.  The  XI  Amendment. 


CONTENTS.  XI 

116.  The  relations  between  the  federal  and  state  courts. 

117.  The  XIV  Amendment  as  affecting  state  judicial  proceedings. 

118.  The  "full  faith  and  credit"  clause. 


CHAPTEE  XL 

EIGHTS  OF  PEESON  AND  OF  PEOPEETY. 

119.  Citizenship  of  the  United  States. 

120.  Citizenship  of  a  state. 

121.  The  right  of  suffrage. 

122.  The  right  of  serving  on  juries. 

123.  Congressional  regulation  of  federal  elections. 

124.  Immigrants  and  aliens. 

125.  Personal  and  property  rights. 

126.  The  rights  within  a  state  of  citizens  of  other  states. 

127.  Foreign  corporations. 

128.  The  I  Amendment. 

129.  The  XIII  Amendment. 

130.  The  XIV  Amendment. 

131.  The  equal  protection  of  the  laws. 

132.  The  police  power. 


CHAPTEE   XII. 

THE   FEDEEAL   SUPEEMACY   AND   THE   EESEEVED  EIGHTS  OF 

THE  STATES. 

133.  The  results  of  federal  supremacy. 

134.  The  constitutional  reservation  of  the  rights  of  the  states. 

135.  The  nature  and  extent  of  those  reserved  rights. 

136.  The  importance  of  the  preservation  of  the  rights  of  both  the  United 

States  and  the  states. 


TABLE  OF  CASES  CITED. 


The  references  are  to  the  pages. 


A.  A.  P.  Co.  v.  D.  P.  Co.,  191 

U.  S.  373  282,  288 

A.  B.  Co.  v.  Kansas,  193  U. 

S.  49  228 

Aberdeen    Bank    v.    Chehalis 

County,     166     U.     S. 

440  50,     52 

Ableman   v.    Booth,    21    How. 

506  18,  271 

Achison     v.     Huddleson,     12 

How.  293  97 

Adams  v.  Nashville,  95  U.  S.  19     49 
v.  New  York,   192   U.   S. 

585  246,  320 

A.  Ex.  Co.  v.  Kentucky,  166 

U.  S.  171  40,  57,  103 

v.  Michigan,    177    U.    S. 

404  206 

v.  Ohio,    165    U.    S.    194, 

166  id.  185 

40,  54,  57,  103,  316 
A.   I.    Co.    v.   Canter,    1   Pet. 

511  8,  9,     19 

Ainsa  v.  U.  S.,  184  U.  S.  639     209 
Alabama  v.  Georgia,  23  How. 

505  191,  211 

Albany  Bridge  Case,  The,  2 

Wall.  403  84 

Allen  v.  Louisiana,  103  U.  S. 

80  233 

v.  Newberry,      21      How. 

244  209 

v.  P.  P.  C.  Co.,  191  U.  S. 

171        55,  56,  58,  103,  105 
v.  S.  P.  E.,  173  U.  S.  479  224 
Allgeyer     v.     Louisiana,     165 

U.  S.  578  63,  280 

Almy  v.   California,   24  How. 

169  57,  64,  88,  106 

Ambrosini  v.  U.  S.,  187  U.  S. 

1  39 

Ames   v.   Kansas,   111   U.    S. 

449  206,  221,  225 

Amy    v.    Shelby    County,    114 

U.  S.  387  179 

1?.  Supervisors,    11    Wall. 

136  266,  267 


Anderson  v.   Dunn,  6  Wheat. 

204  18 

v.  U.  S.,  171  U.  S.  604       128 
Andrews  v.  Andrews,  188  U.  S. 

14  283,  284,  286 

v.  Swartz,  156  U.  S.  272 

274,  282 
Antoni  v.  Greenhow,  107  U.  S. 

769  145 

A.  P.  Co.  v.  Fisher,  166  U.  S. 

464  256 

A.  P.  &  S.  Co.  v.  U.  S.,  175 

U.  S.  211  67,  127,  251 

Arbuckle    v.    Blackburn,    191 

U.  S.  405         215,  276,  319 
Arkansas  v.  K.  &  T.  C.  Co., 

183  U.  S.  185  206,  210,  225 
Armstrong  t?.  Carson,   2  Dall. 

302  283 

v.  Lear,  8  Pet.  52  229 

Arndt    v.    Griggs,    134    U.    S. 

316  274 

Arnson  v.  Murphy,  109  U.  S. 

238  265 

Arrowsmith      v.      Harmoning, 

118  U.  S.  194  276 

A.  B.  T.  Co.  v.  Hall,  174  U.  S. 

70  40,  57,  103 

A.  By.  v.  New  York,  176  U.  S. 

335  142,  161,  176,  278 

Asher    v.    Texas,    128    U.    S. 

129  55,  92,  302 

Ashley  v.  Byan,  153  U.  S.  436 

22,  55,  103,  304,  305,  306 
A.  S.  of  M.  H.  v.  McAnnulty, 

187  U.  S.  94  229 

Aspinwall  v.  Daviess   County, 

22  How.  364  148,  149 

A.  S.  B.  Co.  v.  Louisiana,  179 

U.  S.  89  320 

Asylum  v.   New   Orleans,    105 

U.  S.  362  52,  162,  163 

A.  S.  &  W.  Co.  v.  Speed,  192 

TJ.  S.  500 

43,  55,  87,  92,     94 
Atherton  v.  Atherton,  181  U. 

S.  155  286 


Xlll 


XIV 


TABLE   OF    CASES    CITED. 
The  references  are  to  the  pages. 


Atkin    v.    Kansas,    191    U.    S. 

207  278,  319 

A.,  T.  &  S.  F.  E.  v.  Matthews, 

'    174  U.  S.  96    313,  314,  318 
Austin  v.  Tennessee,  179  U.  S. 

343  96 

Auten  v.  U.  S.  Nat.  Bank,  174 

U.  S.  125  206 

A.  V.  L.  &  C.  Co.  v.  Mann,  130 

U.  S.  69  257 

Ayers,  In  re,  123  U.  S.  443   180,  261 
A.  &  P.  T.  Co.  v.  Philadelphia, 

190  U.  S.  160  24,  134 

Backus  v.  F.  S.  U.  D.  Co.,  169 

U.  S.  557  274,  277 

Bacon  v.  Howard,  20  How.  22    283 

Bailey   v.   Maguire,    22    Wall. 

215  174 

Bain,  Ex  parte,  121  U.  S.  1      247 

Baker  v.  Grice,  169  U.  S.  284    225 

Baldwin  v.  Franks,  120  U.  S. 

678  233,  238 

v.  Hale,  1  Wall.  223 

147,  152,  153 

Baltimore   v.   B.    T.   Co.,   166 

U.  S.  673  177 

Baltzer  v.  North  Carolina,  161 

U.  S.  240  180 

Banholzer  v.  N.  Y.  L.  I.  Co., 

178  U.  S.  402  282 

Bank  v.  Supervisors,  7  Wall. 

26  44 

Bank  of  Alabama  v.  Dalton, 

9  How.  522      267,  283,  288 

Bank  of  Augusta  v.  Earle,  13 

Pet.  519  63,  304,  305 

Bank  of  Columbia  v.  Okely,  4 

Wheat.  235  256 

Bank  of  Commerce  v.  Tennes- 
see, 161  U.  S.  134,  163 
id.  416  162 

Bank  of  Hamilton  v.  Dudley's 

Lessee,  2  Pet.  492  204 

Bank  of  Kentucky  v.  Wister, 

2  Pet.  318  262 

Bank  of  Eedemption  v.  Bos- 
ton, 125  U.  S.  60  50 

Bank    of    U.    S.    v.    Deveaux, 

5  Cr.  61  303 

v.  Halstead,     10     Wheat. 

51  265 

v.  Planters'       Bank,       9 
Wheat.  904  262 

Bank  of  Washington  v.  Arkan- 
sas, 20  How.  530  180 

Banks  v.  Mayor,  7  Wall.  16          44 

Bank  Tax  Case,  2  Wall.  200        44 

Barber  v.  Barber,  21  How.  582  210 


Barbier  v.  Connolly,  113  U.  S. 

27  314,  321 

Barings  v.  Dabney,  19  Wall.  1  169 
Barney  v.  Baltimore,  6  Wall. 

280  210 

v.  City  of  New  York,  193 

U.  S.  430         280,  319,  323 
v.  Keokuk,  94  U.  S.  324       72 
Barnitz  v.  Beverly,  163  U.  S. 

118  146 

Barrett  v.  Holmes,  102  U.  S. 

651  143,  279 

Barren  v.  Baltimore,  7  Pet.  243    247 
v.  Burnside,  121  U.  S.  186  307 
Bartemeyer  v.  Iowa,  18  Wall. 

129  100,  298 

Bartlett  v.  Lockwood,  160  U. 

S.  357  80 

Barton  v.  Barbour,  104  U.  S. 

126  255 

Bates  v.  Clark,  95  U.  S.  204       264 
Bath  County  v.  Amy,  13  Wall. 

244  267 

Bauman    v.    Boss,    167    U.    S. 

548  11,  251,  253 

Bausman  v.  Dixon,  173  U.  S. 

113  206 

Bayard   v.   Singleton,   1   Mar- 
tin, (N.  C.)  42  233 
B.  B.  &  B.  C.  E.  v.  New  What- 

com,  172  U.  S.  314         277 
Beatty  v.   Benton,   135   U.   S. 

244  224 

Bedford  v.  E.  B.  &  L.  Assn., 

181  U.  S.  227         142,  306 
v.  U.  S.,  192  U.  S.  217       253 
Beer  Co.  v.  Massachusetts,  97 

U.  S.  25  100,  176,  178 

Beers   v.    Arkansas,    20    How. 

527  180,  181 

Belden    v.    Chase,    150    U.    S. 

674  206,  209 

Belfast,  The,  7  Wall.  624 

208,  209,  269 
Belknap  v.  Schild,   161  U.   S. 

10  209,  253 

Bell  v.  Bell,  181  U.  S.  175        286 
Bellaire   v.   B.   &   O.    E.,    146 

U.  S.  117  225 

Bement    v.    N.    H.    Co.,    186 

U.  S.  70  126,  128 

Benjamin  v.  New  Orleans,  169 

U.  S.  161  215 

Benner  v.  Porter,  9  How.  235         9 
B.  G.  E.  v.  Pennsylvania,  134 

U.  S.  232  41,  43,  316 

Bier    v.   McGehee,    148    U.    S. 

137  139,  148,  149 

Bigby  v.  U.  S.,  188  U.  S.  400     209 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XV 


Bigler  v.  Waller,  14  Wall.  297     21 
Billings  v.  Illinois,  188  U.  S. 

97  41,  316 

Bingham  v.  Cabot,  3  Dall.  382  215 
Binghamton    Bridge,    3    Wall. 

51  167,  168,  175 

Bischoff  v.  Wethered,  9  Wall. 

812  284 

Blackstone  v.  Miller,  188  U.  S. 

189  40,  41,  140 

Blair  v.   Cuming  County,   111 

U.  S.  363  25 

Blake  v.  McClung,  172  U.  S. 

239  215,  303,  304,  319 

v.  McClung,  176  U.  S.  59  303 
In  re,  175  U.  S.  114  267 

Blount   v.   Walker,   134   U.   S. 

607  287 

v.  Windley,      95      U.      S. 

173  144,  148,  153 

Blyew  v.  U.  S.,  13  Wall.  581      206 
Board  of  Assrs.  v.  C.  N.  D'E., 

191  U.  S.  388  40,  41 

Board  of  Liquidation  v.  Louis- 
iana, 179  U.  S.  622         141 
v.  McComb,     92     U.      S. 

531  263,  264 

Board  of  Pub.   Works  v.  Co- 
lumbia     College,       17 

Wall.  521  284 

Bock    v.    Perkins,    139    U.    S. 

628  19,  206,  225,  272 

Bolles  v.  Brimfield,  120  U.  S. 

759  242 

Bollman    and    Swartwout,    Ex 

parte,  4  Cr.  75        243,  250 
Bolln  v.  Nebraska,  176  U.  S. 

83  2,  274 

Bonaparte  v.  Tax  Court,   104 

U.  S.  592  23,     42 

Boom    Co.    v.    Patterson,    98 

U.  S.  403  210 

Booth   v.    Illinois,    184   U.    S. 

425  232,  279,  321 

Borer  v.  Chapman,  119  U.  S. 

587  265 

Bors  v.  Preston,  111  U.  S.  252     221 
ike  v.  Comingore,  177  U.  S. 

459  18,  206,  215, 

224,  225,  238,  270 
Boswell's    Lessee    v.    Otis,    9 

How.  336  273,  285 

Botiller     v.     Dominguez,     130 

U.  S.  238  238 

wman  v.  C.  &  N.  W.  Ky., 

125  U.  S.  465     69,  94,  102 
v.  Middleton,       1       Bay, 

(S.  C.)   252  233 

yce  v.  Tabb,  18  Wall.  546       310 


.our 

Bos 


Boyd  v.  Alabama,  94  U.  S.  645  176 
v.  Nebraska,  143  U.  S. 

135  224,  291 

v.  U.  S.,  116  U.  S.  616        246 

Boyd,  Ex  parte,  105  U.  S.  647    210 

Boyer  v.  Boyer,  113  U.  S.  689     50 

Boyle     v.     Zacharie,     6     Pet. 

635  147,  151 

Bradfield  v.  Koberts,  175  U.  S. 

291  309 

Bradley  v.  Lightcap,  195  U.  S. 

1  146,  276 

v.  The  People,  4  Wall.  459  49 
Bradwell  v.  State,  16  Wall 

130  301,  311 

Brass  v.  North  Dakota,  153 

U.  S.  391  98,  278,  315,  317 
Breithaupt  v.  Bank  of  Georgia, 

I  Pet.  238  215 
Brennan     v.     Titusville,     153 

U.  S.  289  55,  92 

Bridge  Proprietors  v.  Hoboken 

Co.,  1  Wall.  116  141,  168 
Brimmer  v.  Eebman,  138  U.  S. 

78  54,  89,  91 

Briscoe  v.  Bank  of  Kentucky, 

II  Pet.  257 

3,  189,  190,  234,  262 
Bristol  v.  Washington  County, 

177  U.  S.  133  22,  40,  41 
Bronson  v.  Kimpton,  8  Wall. 

444  20 

v.  Kinzie,  1  How.  311         146 
v.  Eodes,  7  Wall.  229  20 

Brown  v.  Houston,  114  U.  S. 

622  54,  69,  90,  94,  104 
v.  Huger,  21  How.  305  264 
v.  Keene,  8  Pet.  112  215 

v.  Maryland,    12    Wheat. 
419  28,  43,  62, 

88,  93,  94,  235 
v.  New  Jersey,  175  U.  S. 

172  274,  282,  298,  320,  322 
v.  Smart,  145  U.  S.  454  139 
v.  Trousdale,  138  U.  S. 

389  225 

v.  Walker,     161     U.     S. 

591  111,  232,  252 

In  re,  135  U.  S.  701  143 

Brownfield  v.  South  Carolina, 

189  U.  S.  426  313 

Bryan  v.  Board  of  Education, 

151  U.  S.  639  141,  165 
v.  Virginia,  135  U.  S. 

685  147 

B.    T.    Co.    v.    B.    B.    K.,    151 

U.  S.  137  276,  282 
Bucher  v.  C.  K.,  125  U.  S. 

555        210,  243,  282 


XVI 


TABLE   OF    CASES   CITED. 
The  references  are  to  the  pages. 


Buck  v.  Colbath,  3  Wall.  334  273 
Buckner  v.  Finley,  2  Pet.  586  2 
Budd  v.  New  York,  143  U.  S. 

517  98,  lOla,  278,  315 

Burgess  v.  Seligman,  107 

U.  S.  20  240,  242 

Burlington  v.  Beasley,  94  U.  S. 

310  24 

Burthe  v.  Denis,  133  U.  S. 

514  206,  224 

Bush  v.  Kentucky,  107  U.  S. 

110  216,  313 
Butchers'  Union  v.  C.  C.  Co., 

111  U.  S.  746  178 
Butler  v.  B.  &  S.  S.  Co.,  130 

U.  S.  527  208,  209,  238 
v.  Horwitz,  7  Wall.  258  20 
v.  Pennsylvania,  10  How. 

402  147,  179 

Butterworth  v.  Hoe,  112  U.  S. 

50  229 

Buttfield  v.  Stranahan,  192 

U.  S.  470  66,  232,  251 
B.  W.  S.  Co.  v.  Mobile,  186 

U.  S.  212  165 

Byers  v.  McAuley,  149  U.  S. 

608  210,  266,  272 

Byrne  v.  Missouri,  8  Pet.  40  189 
B.  &  O.  E.  v.  Harris,  12  Wall. 

65  215 

v.  Maryland,  21  WaU. 

456  23,  56,  102 

B.  &  S.  E.  v.  Nesbit,  10  How. 

395  182,  183 

Cable  v.  U.  S.  L.  I.  Co.,  191 

U.  S.  288  307 

Calder  v.  Bull,  3  Call.  386 

182,  183,  184 
Caldwell  v.  Carrington,  9  Pet. 

86  283 

v.  North     Carolina,     187 

U.  S.  622  55 

v.  Texas,  137  IT.  S.  692     273 
California    v.    C.    P.    E.,    127 

U.   S.  1  54,  103,  305 

v.  S.   P.   Co.,    157    U.    S. 

229  213 

Callan   v.   Wilson,    127    U.    S. 

540  10,  246,  252 

Cameron  v.  Hodges,  127  U.  S. 

322  210,  215 

Campbell  v.  Holt,  115  U.   S. 

620  279 

v.  Wade,  132  U.  S.  34  148,  149 
Cannon    v.    New    Orleans,    20 

Wall.  577  44,  74,  76 

Caperton  v.  Ballard,  14  Wall. 

238  283 


Capron  v.  Van  Noorden,  2  Cr. 

126  215 

Cardwell  v.  A.  B.  Co.,  113 

U.  S.  205  84 

Carneal  v.  Banks,  10  Wheat. 

181  238 
Carpenter  v.  Pennsylvania,  17 

How.  456  41,  42,  182,  183 
v.  Strange,  141  U.  S.  87  285 
Carroll  County  v.  Smith,  111 

U.  S.  556  242 

Carson  v.  Brocton  S.  Com., 

182  U.  S.  398  24,  277 
Carstairs  v.  Cochran,  193  U.  S. 

10  40 

Carter     v.     McClaughry,     183 

U.  S.  365  252 

v.  Texas,      177      U.      S. 

442  295,  313,  319 

Case  v.  Kelly,  133  U.  S.  21        243 
Gates  v.  Allen,  149  U.  S.  451      255 
C.,  B.  &  Q.  E.  v.  Chicago,  166 
U.  S.  226 

lOla,  176,  257,  277 
v.  Iowa,  94  U.  S.  155 

98,  176,  177 
v.  Nebraska,    170    U.    S. 

57  141,  176,  177,  178 

C.,  C.,  C.  &  St.  L.  Ey.  v. 
Backus,  154  U.  S. 
439  22,  40,  57,  103 

v.  Illinois,  177  U.  S.  514    101 
C.  C.  D.  Co.  v.  Ohio,  183  U.  S. 

238  206,  247,  279,  298,  315 
C.,  C.  &  A.  E.  v.  Gibbes,  142 
U.  S.  386 

24,  278,  304,  314,  316 
C.  D.  Co.  v.  Shepherd,  20  How. 

227  303 

Central  Nat.  Bank  v.  Stevens, 

169  U.  S.  432  272 

Central  E.  &  B.  Co.  v.  Wright, 

164  U.  S.  327   53,  162,  166 
C.  F.  D.  N.  v.  Louisiana,  186 

U.  S.  380  80 

Chadwick  v.  Kelley,  187  U.  S. 

540  228,  316 

Chandler  v.  Dix,  194  U.  S.  590  260 
Chapman  v.  Barney,  129  U.  S. 

677  215 

In  re,  166  U.  S.  661  18 

Chappell  v.  U.  S.,  160  U.  S. 

499  19 

v.  Waterworth,  155  U.  S. 

102  215,  225 

Charles  Eiver  Bridge  v.  War- 
ren Bridge,  11  Pet.  544       174 
Cheever    v.    Wilson,    9    Wall. 

108  283 


TABLE   OF    CASES   CITED. 
The  references  are  to  the  pages. 


XV11 


Chemung  Canal  Bank  v.  Low- 

ery,  93  U.  S.  72  302 

Cherokee  Nation  v.  Georgia,  5 

.fet.  1  135,  213,  229 

v.  S.  K.   Ry.,   135  U.    S. 

641  135,  253 

Cherokee     Tobacco,     The,     11 

Wall.  616  238 

Chicago   v.    Sheldon,    9    Wall. 

50  52,  139,  162,  163 

Chicago       Theological       Sem- 
inary   v.    Illinois,    188 

U.  S.  662  53,  166 

China,  The,  7  WaU.  53  77 

Chin  Bak  Kan  v.  U.   S.,  186 

U.  S.  193  297 

Chinese    Exclusion    Case,    130 

U.  S.  581 

19,  238,  239,  296,  297 
Chirac  v.  Chirac,  2  Wheat.  259 

238,  291 
Chisholm  v.   Georgia,    2   DaU. 

419  205,  214,  258 

Chittenden     v.     Brewster,     2 

Wall.  191  266 

Christ  Church  v.  Philadelphia, 

24  How.  300  164 

Christmas  v.  Russell,  5  WaU. 

290  283 

Christy,  Ex  parte,  3  How.  292  268 
Church  v.  Hubbart,  2  Cr.  187    229 
v.  Kelsey,  121  U.  S.  282 

179,  274 
Chy    Lung    v.    Freeman,     92 

U.   S.   275         57,  105,  296 
Citizens'  Bank  v.  Parker,  192 

U.    S.   73  52,  162,  166 

Citizens'     Savings     Bank     17. 

Owensboro,   173   U.   S. 

636  53,  165,  166 

Citizens'    S.    &    L.    Assn.    v. 

Perry       County,       156 

U.  S.  692  148 

City  v.  Lamson,  9  Wall.  477  139 
City  of  Panama,  101  U.  S.  453  9 
Civil  Rights  Cases,  109  U.  S. 

3  323 

Claflin  v.  Houseman,  93  U.  S. 

130  218,  268,  269 

Clark  v.   Barnard,   108  U.   S. 

436  260,  265 

v.  Bever,  139  U.  S.  96 

210,  242,  243 
v.  Kansas  City,  176  U.  S. 

114  320 

v.  Titusville,    184    U.    S. 

329  41,  316 

Clarke   v.   Clarke,    178    U.    S. 

186  210,  284,  285 


Clarke,  Ex  parte,  100  U.  S.  399  296 
Clay  v.  Field,  138  U.  S.  464  310 
C.  L.  Co.  v.  Laidley,  159  U.  S. 

103  140,  276 

Cleveland  v.  C.  C.  Ry.,  194 

U.  S.  517  178 

v.  C.  E.  Ry.,  194  U.  S.  538  178 
C.  L.  I.  Co.  v.  Needles,  113 

U.  S.  574  140,  175 

Clinton  v.  Englebrecht,  13 

Wall.  434  9 

Clinton  Bridge,  The,  10  WaU. 

454  83 

Close  v.  Glenwood  Cemetery, 

107  U.  S.  466  165 
C.    M.    Co.    v.   Ferguson,    113 

U.  S.  727  234,  308 

C.  M.  L.   I.   Co.  v.   Cushman, 

108  U,  S.  51  143 
v.  Spratley,  172  U.  S.  602 

142,  148,  176,  308 
C.,  M.  &  St.  P.  Ry.  v.  Minne- 
sota, 134  U.  S.  418 

lOla,  176,  177,  278,  313 
v.  Solan,  169  U.  S.  133 

99,  140,  148,  243 
v.  Tompkins,    176    U.    S. 

167  lOla,  278,  315 

C.  N.  B.  &  L.  Assn.  v.  Benson, 

189  U.  S.  408  308 

C.,  N.  O.  &  T.  P.  Ry.  v.  I.  C. 

C.,  162  U.  S.  184    110,  111 
Codlin     v.     Kohlhausen,     181 

U.  S.  151  228 

Coe  v.  Errol,  116  U.  S.  517 

22,  41,  55,  69,  104 
Cohens  v.  Virginia,  6  Wheat. 
264 
204,  205,  206,  210,  214, 

217,  224,  228,  236,  262 
Cole  v.  Cunningham,  133  U.  S. 

107  266,  283,  284 

v.  La  Grange,   113  U.  S. 

1  24 

Collector  v.  Day,  11  Wall.  113  39 
Collet  v.  CoUet,  2  Dall.  294  291 
Commercial  Bank  v.  Chambers, 

182  U.  S.  556  50 

Commissioners   of   Tippecanoe 

v.  Lucas,  93  U.  S.  108  275 
Commonwealth  v.  Caton,  4 

Call,  (Va.)  5  233 

Conner  v.  Elliott,  18  How.  593  301 
Connolly  v.  U.  S.  P.  Co.,  184 
U.  S.  540 

41,  126,  204,  233,  314,  316 
Connors  v.   U.   S.,   158   U.    S. 

408  296 

Contzen  v.  U.  S.,  179  U.  S.  191  291 


XV111 


TABLE   OF    CASES    CITED. 
The  references  are  to  the  pages. 


Converse,  In  re,  137  U.  S.  624  276 
Conway  v.   Taylor,   1  Bl.   603 

82,  100 

Cook  v.  Hart,  146  U.  S.  183       195 
v.  Moffat,  5   How.   295 

147,  152 
v.  Pennsylvania,  97  U.  S. 

566  43,  62,     88 

v.  U.  S.,  138  U.  S.  157 

186,  254 
Cook  County  v.  C.  &  C.  C.  & 

D.  Co.,  138  U.  S.  635     224 
Cooke    v.    Avery,    147    U.    S. 

375  206 

Cooley  v.  Board  of  Wardens, 

12  How.  299  69,     76 

Cooper   v.   Newell,    173   U.   S. 

555  283,  285,  287 

v.  Keynolds,  10  Wall.  308  285 
In  re,  143  U.  S.  472  228 

Corfield    v.    Coryell,    4    Wash. 

C.  C.  371  300 

Cornell   v.    Coyne,    192    U.    S. 

418  29,     73 

Corson  v.  Maryland,  120  U.  S. 

502  55,  91,  302 

Cosgrove  v.  Winney,  174  IT.  S. 

64  194,  250 

Cotting  v.  K.  C.  S.  Y.  Co.,  183 

U.  S.  79  278,  313 

Coughran     v.     Bigelow,     164 

U.  S.  301  256 

Counselman  v.  Hitchcock,  142 

U.  S.  547  110 

County  of  Livingston  v.  Dar- 
lington, 101  U.  S.  407     24 
County  of  Mobile  v.  Kimball, 

102  U.  S.  691 

62,  69,  85,     86 
County   of   Moultrie  v.   Eock- 

ingham  T.  C.  S.  Bank, 

92  U.  S.  631    138,  148,  154 
County  of  Balls  v.  Douglass, 

105  U.  S.  728  139 

Covell  v.  Heyman,  111  U.  S. 

176  271,  272 

Covington    v.    Kentucky,    173 

U.  S.  231  165 

Cowles    v.    Mercer    County,    7 

Wall.  118  305 

Coy,  In  re,  127  U.  S.  731  296 

C.    P.    Co.    v.    Beckwith,    188 

U.  S.  567  282 

C.    P.    B.    v.    California,    162 

U.  S.  91  47 

v.  Nevada,  162  U.  S.  512  46 
Craig  v.  Missouri,  4  Pet.  411  189 
Crandall  v.  Nevada,  6  Wall. 

35       47,  89,  104,  303 


Crenshaw  v.  U.  S.,  134  U.  S. 

99  179 

C.,  R.  1.  &  P.  Ey.  v.  Sturm, 

174  U.  S.  710  288 

v.  Zernecke,     183     U.     S. 

582  278 

Cronin   v.   Adams,   192   U.    S. 

108  278 

Cross  v.  Allen,  141  U.  S.  528 

210,  242,  243,  282 
v.  Harrison,  16  How.  164  27 
v.  North  Carolina,  132 

U.  S.  131         269,  272,  276 
Crossley     v.     California,     168 

U.  S.  640  225,  269 

Grossman  v.  Lurman,  192  U.  S. 

189  96,  100 

Crow  Dog,  Ex  parte,  109  U.  S. 

556  136 
Crowley    v.    Christensen,    137 

U.  S.  86  322 

Cruickshank    v.    Bidwell,    176 

U.  S.  73  229 

Crutch  er     v.     Kentucky,     141 

U.  S.  47 

55,  56,  93,  105,  305 
C.  Ey.  v.  C.  S.  E.,  166  U.  S. 

557  163,  165 
C.  E.  &  B.  Co.  v.  Wright,  164 

U.  S.  327    53,  162,  166 
C.  S.  Ey.  v.  Gebhard,  109 

U.  S.  527  308 

v.  Snell,  193  U.  S.  30    318 
v.  Wright,  151  U.  S.  470  317 
C.  T.  Co.  v.  Hof,  174  U.  S. 

1  10,  257 

v.  Lander,  184  U.  S.  Ill 

45,  48 

Gumming  v.  Board  of  Educa- 
tion, 175  U.  S.  528 

298,  322 
Cummings     v.     Chicago,     188 

U.  S.  410  83 

v.  Missouri,   4  Wall.   277 

184,  185,  187,  188 
v.  National  Bank,  101 

U.  S.  153  51 

Cunningham   v.   M.   &   B.    E., 

109  U.  S.  446  260 

Cur  ran  v.  Arkansas,  15  How. 

304  169,  262 

Curtis  v.  Whitney,  13  Wall.  68  144 
Ex  parte,  106  U.  S.  371       19 
C.  &  A.  E.  v.  W.  F.  Co.,  108 

U.  S.  18  283 

v.  W.  F.  Co.,  119  U.  S. 

615        229,  230,  282 
C.  &  B.  Co.  v.  New  Orleans, 

99  U.  S.  97          45 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XIX 


C.   &  C.  B.   Co.   v.  Kentucky, 

154  U.  S.  204 

66,  70,  84,  169 
C.   &   G.    T.   By.   v.   Wellman, 

143  U.  S.  339       lOla,  278 
C.  &  L.  T.  E.  Co.  v.  Sandford, 

164  U.  S.  578 

53,  lOla,  168,  174,  175 

178,  304,  314,  315 
C.   &   N.   W.   Ey.   v.   Chicago, 

164  U.  S.  454  224 

C.  &  O.  Ey.  v.  Kentucky,  179 

U.  S.  388  78,     98 

Daniel    Ball,    The,    10    Wall. 

557    '  68,  77,  82,  209 

D'Arcy  v.  Ketchum,  11  How. 

165  284 
Darrington   v.    Bank    of    Ala- 
bama, 13  How.  12  190 

Dartmouth    College    v.    Wood- 
ward, 4  Wheat.  518 

147,  170,  178 
Davenport  Bank  v.  Davenport, 

123  U.  S.  83  49 

Davidson  v.  New  Orleans,   96 

U.  S.  97  247,  277 

Davis  v.  Beason,  133  U.  S.  333  309 
v.  Burke,   179   U.    S.   399 

225,  274 
v.  Elmira    Savings    Bank, 

161  U.  S.  275  271 

v.  Gray,  16  Wall.  203 

161,  259,  263 
v.  Massachusetts,    167    U. 

S.  43  280 

v.  Packard,  7  Pet.  276        269 

Day  v.  Gallup,  2  Wall.  97         273 

D.  C.  &  I.  Co.  v.  Barton,  183 

U.  S.  23  304 

Debs,  In  re,  158  U.  S.  564 

4,  126,  246,  274 
In  re,  64  Fed.  724  126 

Decatur  v.  Paulding,  14  Pet. 

497  229 

Delaware    R.    Tax    Case,    18 

Wall.  206    53,  56,  102,  174 
De  Lima  v.  Bidwell,  182  U.  S. 

I  11,  19,  27,  38,  229,  238 
Delmas  v.   Ins.   Co.,   14  Wall. 

661  140,  141,  146 

Den  v.  Jersey  Co.,  15  How.  426     71 
Dennick  v.  E.  Co.,  103  U.  S. 

II  210 
Denny  v.  Bennett,  128   U.   S. 

489  139,  153 

v.  Pironi,  141  U.  S.  121     215 
Dent  v.  West  Virginia,  129  U. 

S.  114  278 


Deposit    Bank    v.    Frankfort, 

191  U.  S.  499  289 

De   Saussure  v.  Gaillard,   127 

U.  S.  216  224 

De  Treville  v.  Smalls,  98  U.  S. 

517  35 

Detroit  v.  D.  C.  S.  E.,  184  U. 

S.  368  139,  178 

v.  Parker,  181  U.  S.  399 

273,  277,  316 
Dewey  v.  Des  Moines,  173  U. 

S.  193  22,  24,  224,  273 
D.  G.  Co.  v.  U.  S.  G.  Co.,  187 

U.  S.  611  140,  304,  306 
Dial  v.  Eeynolds,  96  U.  S.  340  266 
Dietzsch  v.  Huidekoper,  103 

U.  S.  494  267 

Diggs  v.  Wolcott,  4  Cr.  179        266 
D.  M.  Co.  v.  Ontonagon,   188 

U.   S.   82  55 

Dobbins  v.  Commissioners,   16 

Pet.  435  44 

Dodge    v.    Woolsey,    18    How. 

331  204 

Doe  v.  Beebe,  13  How.  25  299 

Dooley  v.  Pease,  180  U.  S.  126 

210,  241,  243 

v.  Smith,  13  Wall.  604  21 
v.  U.  S.,  182  U.  S.  222  11,  27 
v.  U.  S.,  183  U.  S.  151 

11,  19,  28,     73 
Dorr  v.  U.  S.,  195  U.  S.  138 

11,     12 
Douglas  v.  Kentucky,  168  U.  S. 

488  141,  178 

Douglass   v.    County   of   Pike, 

101  U.  S.  677  139 

Dow  v.  Beidelman,  125  U.  S. 

680  lOla,  278,  315 

Downes  v.  Bidwell,  182  U.  S. 
244 

1,  4,  11,  13,  19,  27,  37,  234 
Downham  v.  Alexandria  Coun- 
cil, 10  Wall.  173 

55,  92,  302 
Doyle  v.   C.   I.   Co.,   94  U.   S. 

535  307 

Dred    Scott    v.    Sandford,    19 
How.  393 

8,  215,  231,  291,  292 
Drehman  v.  Stifle,  8  Wall.  595  144 
Dreyer  v.  Illinois,  187  U.  S. 

71  224,  252,  280 

Ducat  v.  Chicago,  10  Wall.  410 

63,  305,  306 

Duncan  v.  Darst,  1  How.  301   271 
v.  Missouri,  152  U.  S.  377 

184,  187,  274,  275,  298,  322 
In  re,  139  U.  S.  449  225,  282 


XX 


TABLE   OP    CASES    CITED. 
The  references  are  to  the  pages. 


Dupasseur    v.    Eochereau,    21 

Wall.  130  289 

Durousseau  v.  U.  S.,  6  Cr.  307  223 
Dynes  v.  Hoover,  20  How.  65     244 

D.  &  H.  C.  Co.  v.  Pennsylvania, 

156  U.  S.  200     22,  23,     43 

Eagle,  The,  8  Wall.  15  209 

Earle   v.    Conway,    178    U.    S. 

456  271,  272 

v.  Pennsylvania,  178  U.  S. 

449  272 

East   Hartford   v.   H.    Bridge 

Co.,  10  How.  511  170 

Easton  v.  Iowa,  188  U.  S.  220 

238,  269 

E.  B.  &  L.  Assn.  v.  Ebaugh, 

185  U.  S.  114  282 

v.  Williamson,   189   U.   S. 

122  282 

Edwards  v.   Elliott,   21   Wall. 

532  208,  243,  255,  266,  269 
v.  Kearzey,  96  U.  S.  595  138 
Effinger  v.  Kenney,  115  U.  S. 

566  146 

E.  I.  Co.  v.  Ohio,  153  U.  S.  446  176 
Eidman  v.  Martinez,  184  U.  S. 

578  40 

Eilenbecker        v.        Plymouth 

County,  134  U.  S.  31 

274,  298 
Eldridge  v.  Trezevant,  160  U. 

S.  452  278,  280,  317 

Elk  v.  Wilkins,  112  U.  S.  94     291 
E.   L.   L.    Co.   v.   Brown,    155 

U.  S.  488  215,  225 

Ellenwood  v.   M.   C.   Co.,   158 

U.  S.  105  210,  243 

Elliott  v.  Peirsol,  1  Pet.  328      284 
Elmendorf      v.      Taylor,      10 

Wheat.  152  282 

Emblen  v.  L.  L.  Co.,  184  U.  S. 

660  253 

Embry  v.  Palmer,   107  U.   S. 

3  18,  289 

Emert  v.  Missouri,  156  U.  S. 

296  55,  90,  92,  303 

Ennis  v.  Smith,  14  How.  400 

229,  285 
Erb  v.  Morasch,  177  U.  S.  584 

99,  282,  283 
Erie  Ey.  v.  Penna.,  21  Wall. 

492  53,  174 

Erwin  v.  Lowry,  7  How.  172 

267,  272 
E.    Ey.    t>.    Pennsylvania,    15 

Wall.  282  58,  105 

Escanaba  Co.  v.  Chicago,  107 

U.  S.  678  84,  100 


Essex    Pub.    Eoad    Board    v. 

Skinkle,  140  U.  S.  334  170 
Etheridge  v.  Sperry,  139  U.  S. 

266  224,  270,  272 

E.  T.,  V.  &  G.  Ey.  v.  I.  C.  C., 

181  U.  S.  1  113 

Eustis    v.    Bolles,    150    U.    S. 

361  224 

Evansville    Bank    v.    Britton, 

105  U.  S.  322  51 

Ewell  v.  Daggs,  108  U.  S.  143  143 
Ex  parte  Bain,  121  U.  S.  1     247 
Bollman    and    Swartwout, 

4  Cr.  75  243,  250 

Boyd,  105  U.  S.  647  210 

Christy,  3  How.  292  268 

Clarke,  100  U.  S.  399  296 
Crow  Dog,  109  U.  S.  556  136 
Curtis,  106  U.  S.  371  19 

Ferry  Co.,  104  U.  S.  519 

208,  243 

Fonda,  117  U.  S.  516  18 

Garland,  4  Wall.  333  185,  188 
Gordon,  104  U.  S.  515  208,  243 
Jackson,  96  U.  S.  727  18 

Kearney,  7  Wheat.  38  250 
Lange,  18  Wall.  163  250,  252 
Madrazzo,  7  Pet.  627  261 

Mason,  105  U.  S.  696  244 

McNiel,  13  Wall.  236  76,  266 
Milligan,  4  Wall.  2 

244,  245,  250 

Parks,  93  U.  S.  18  250 

Eeggel,  114  U.  S.  642  193,  195 
Eoyall,  117  U.  S.  241  18,  225 
Siebold,  100  U.  S.  371  296 
Terry,  128  U.  S.  289  250,  254 
Virginia,  100  U.  S.  339 

295,  313 

Wall,  107  U.  S.  265  247 

Wells,  18  How.  307  250 

Wilson,  114  U.  S.  417  247 
Yarbrough,  110  U.  S.  651 

18,  19,  250,  293,  296 
Express  Co.  v.  Kountze  Bros., 

8  Wall.  342  303 

Eyster  v.  Gaff,  91  U.  S.  521     268 

Fairbank  v.  U.  S.,  181  U.  S. 

283          28,  30,  64,  74,  232 
Fallbrook  Irr.   Dist.  v.  Brad- 
ley, 164  U.  S.  112 

24,  277,  282 
Fanning  v.  Gregoire,  16  How. 

524  82,  100,  175 

Fargo  v.  Hart,  193  U.  S.  490 

40,  57,  103 

v.  Michigan,    121    U.    S. 
230     '  58,  105 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XXI 


Farmers  &  Mechanics '  Bank  v. 

Smith,  6  Wheat.  131 

147,  150,  152 
Farrington    v.    Tennessee,    95 

U.  S.  679  162 

F.  C.  &  P.  E.  v.  Eeynolds,  183 

U.  S.  471  316,  321 

Felsenheld  v.  U.  S.,  186  U.  S. 

126  70 

Ferguson   v.    Harwood,    7    Cr. 

408  283 

Ferry  Co.,  Ex  parte,  104  U.  S. 

519  208,  243 

Fertilizing  Co.  v.  Hyde  Par  it, 

97  U.  S.  659  176,  178 

F.-G.  L.  S.  Co.  v.  Springer,  185 

U.  S.  47  206 

Ficklen  v.  Shelby  County,  145 

U.  S.  1  55,  92,  303 

Field  v.  B.  A.  P.  Co.,  194  U.  S. 

618  277,  316 

Fielden  v.  Illinois,  143  U.  S. 

452  280 

Filhiol  v.  Maurice,  185  U.  S. 

108  206 

Finney  v.  Guy,  189  U.  S.  335    282 
First  National  Bank  v.  Ayers, 

160  U.  S.  660  50 

First  Nat.  Bank  of  Louisville 

v.  Louisville,  174  U.  S. 

438  51 

Fischer  v.  St.  Louis,  194  U.  S. 

361  279,  321 

Fisk  v.  Jefferson  Police  Jury, 

116  U.  S.  131 

138,  148,  154,  179 
Fitts  v.  McGhee,  172  U.  S.  516  263 
Fleming  v.  Page,  9  How.  603  26 
Fletcher  v.  Peck,  6  Cr.  87 

147,  160,  182,  184,  232 
Florida   v.   Georgia,    11    How. 

293;  17  id.  478         191,  211 
F.  L.  E.  v.  Lowe,  114  U.  S. 

525  46 

F.  M.  L.  Assn.  v.  Mettler,  185 

U.  S.  308  313,  318 

Fok  Yung  Yo  v.  U.  S.,  185  U. 

S.  296  229,  297 

Fonda,  Ex  parte,  117  U.  S.  516     18 
Fong  Yue  Ting  v.  U.  S.,  149 

U.  S.  698    19,  238,  254,  297 
Forbes    v.    Gracey,    94    U.    S. 

762  46 

Ford  v.  D.  &  P.  L.  Co.,  164 

U.  S.  662    24,  53,  166,  167 
v.  Surget,  97  U.  S.  594 

139,  191 
Forsyth  v.  Hammond,  166  U. 

S.  506  282 


Foster  v.  Davenport,  22  How. 

244  77,  79,  101 

v.  Kansas,  112  U.  S.  201    100 
v.  Master  and  Wardens  of 

New  Orleans,  94  U.  S. 

246  75 

v.  Neilson,  2  Pet.  253  238 
Fourteen  Diamond  Eings, 

Pepke,      Claimant,      v. 

U.  S.,  183  U.  S.  176 

11,  27,     38 
Fouvergne  v.  New  Orleans,  18 

How.  470  210 

Fowler  v.  Lindsey,  3  Ball.  411  262 
Fox  v.  Ohio,  5  How.  432  269 

Francis  Wright,   The,   105  U. 

S.  381  223 

Frederich,  In  re,  149  U.  S.  70 

215,  225 
Frederickson  v.  Louisiana,  23 

How.  445  239 

Freeborn  v.  Smith,  2  Wall.  160  183 
Freeland  v.  Williams,  131  U. 

S.  405  148,  154,  274 

Freeman  v.  Alderson,  119  U. 

S.  185  285 

v.  Howe,  24  How.  450  271,  272 
Fremont  v.  U.  S.,  17  How.  542  230 
French  v.  B.  A.  P.  Co.,  181  U. 

S.   324  24,  277,  316 

v.  Hay,  22  Wall.  250  267 

Fretz  v.  Bull,  12  How.  466        209 
Friedlander   v.    T.    &  P.    Ey., 

130  U.  S.  416  210,  243,  282 
Fritts  v.  Palmer,  132  U.  S. 

282  308 

Furman  v.  Nichol,  8  Wall.  44     169 
F.  W.  Co.  v.  Freeport  City,  180 

U.  S.  587 

141,  169,  176,  177,  178 
F.  &  C.  P.  E.  v.  Eeynolds,  183 

U.  S.  471  40,     41 

F.    &    M.    Bank    v.    Smith,    6 

Wheat.  131  147,  150,  152 
F.  &  M.  C.  Co.  v.  Fitzgerald, 

137  U.  S.  98  308 

F.  &  M.  I.  Co.  v.  Dobney,  189 

U.  S.  301  313,  318 

Gableman  v.  P.,  D.  &  E.  Ey., 

179  U.  S.  335  206,  270 
Gaines  v.  Fuentes,  92  U.  S.  10  210 
Gallup  v.  Schmidt,  183  U.  S. 

300  273,  277 

Gantly  v.  Ewing,  3  How.  707    146 
Garland,  Ex  parte,  4  Wall.  333 

185,  188 
Garnett,   In  re,   141   U.    S.   1 

207,  243 


XX11 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


G.,  C.  &  S.  F.  Ey.  v.  Ellis,  165 
U.  S.  150 

278,  304,  313,  314 
v.  Hefley,  158  U.  S.  98 

101,  113,  217,  238 
Geer  v.  Connecticut,  161  U.  S. 

519  72,  301 

Gelpcke  v.   Dubuque,   1   Wall. 

175  139,  242 

Gelston  v.  Hoyt,  3  Wheat.  246 

217,  228,  270 
Genesee    Chief,    The,   v.    Fitz- 

hugh,  12  How.  443  206,  209 
Geofroy  v.   Eiggs,   133   U.    S. 

258  238 

Georgia  v.  Brailsford,  2  Ball. 

402  260 

v.  Stanton,  6  Wall.  50         229 
Georgia,  Governor  of,  v.  Mad- 

razo,  1  Pet.  110       260,  261 
G.  F.  Co.  v.  Pennsylvania,  114 

U.  S.  196  57,  82,  106 

Gibbons  v.  Ogden,  9  Wheat.  1 
15,  54,  62,  64,  66, 
69,  77,  89,  97,  234,  235 
Gibson  v.  Mississippi,  162  U. 

S.  565      184,  186,  295,  313 
v.  U.  S.,  166  U.  S.  269       253 
Giles  v.  Harris,  189  U.  S.  475 

293,  294 
v.  Teasley,  193  U.  S.  146 

293    295 
Gilfillan  v.  U.  C.  Co.,  109  U.  s! 

401  143 

Gilman     v.     Philadelphia,     3 

Wall.  713  4,  84,  217 

v.  Sheboygan,  2  Bl.  510 

24,  154 
Ginesi  v.  Cooper,  14  Ch.  Div. 

601  237 

Giozza  v.  Tiernan,  148  U.  S. 

657    41,  273,  298,  316,  317 
Gladson  v.  Minnesota,  166  U. 

S.  427  99,  101 

Glass  v.  Sloop  Betsey,  3  Ball. 

6  284 

Glenn  v.  Garth,  147  U.  S.  360  282 
Glidden  v.  Harrington,  189  U. 

S.   255  277 

Glide,  The,  167  U.  S.  606  209 

Godfrey  v.  Terry,  97  U.  S.  171  215 
Gonzales  v.  Williams,   192  U. 

S.  1  298 

Good  v.  Martin,  95  U.  S.  90  9 

Goodrich  v.  Detroit,  184  U.  S. 

432  24,  277 

Goodtitle  v.  Kibbe,  9  How.  471  299 
Goodwin  v.  C.  M.  I.  Co.,  110 

U.  S.  1  307 


Gordon  v.  U.  S.,  2  Wall.  561     223 
Ex  parte,  104  U.  S.  515 

208,  243 
Governor  of  Georgia  v.  Mad- 

razo,  1  Pet.  110       260,  261 
Grace    v.    A.    C.    I.    Co.,    109 

U.  S.  278  215 

Grand  Lodge  v.  New  Orleans, 

166  U.  S.  143  164 

Gray  v.  Connecticut,  159  U.  S. 

74  298 

Green  v.  Biddle,  8  Wheat.  1 

142,  161,169 

v.  Creighton,  23  How.  90  271 
In  re,  134  U.  S.  377  296 

Greenwood  v.  Freight  Co.,  105 

U.  S.  13  165 

Grisar   v.   McDowell,   6    Wall. 

363  264 

Gross  v.  U.  S.  Mtge.  Co.,  108 

U.  S.  477  143,  279 

Groves   v.    Slaughter,    15   Pet. 

449  292,  299 

G.  E.  &  B.  Co.  v.  Smith,  128 

U.  S.  174         175,  176,  177 
G.  E.  &  I.  Ey.  v.  Osborn,  193 

U.  S.  17  174,  175,  178 

G.  S.  F.  H.  Co.  v.  Jones,  193 

U.  S.  532  240,  280 

G.    S.   &   L.    S.   v.   Dormitzer, 

192  U.  S.  125  284,  286 

Guarantee    Co.    v.    Board    of 

Liquidation,  105  U.  S. 

622  144 

Gundling  v.  Chicago,  177  U.  S. 

183  322 

Gunn  v.  Barry,  15  Wall.  610 

138,  146 
Gunnison     County     Comrs.     v. 

Rollins,  173  U.  S.  255 

148,  149 

Gut  v.  The  State,  9  Wall.  35     186 
Guthrie  Nat.  Bank  v.  Guthrie, 

173  U.  S.  528  256 

Guy  v.   Baltimore,   100  U.   S. 

434  55,  87,  90,  302 

G.-W.  &  W.  Co.  v.  Keyes,  96 

U.  S.  199  206 

G.  &  B.  S.  M.  Co.  v.  Eadcliffe, 

137  U.  S.  287  285 

G.  &  S.  I.  E.  v.  Hewes,  183 

U.  S.  66 

53,  140,  150, 
162,  164,  165,  167 

Hackett  v.   Ottawa,  99  U.  S. 

86  25 

Hagan  v.  Lucas,  10  Pet.  400 

267,  272 


TABLE    OF    CASES    CITED. 

The  references  are  to  the  pages. 


XX111 


Hagar  v.  Eeclamation  District, 

111  U.  S.  701  20,  277 

Hagood  v.  Southern,  117  U.  S. 

52  260 

Haines  v.  Carpenter,  91  U.  S. 

254  266 

Hale  v.  Akers,  132  U.  S.  554  224 
v.  Lewis,  181  U.  S.  473  224 
Hall  v.  De  Cuir,  95  U.  S. 

485  78 

v.  Wisconsin,  103  U.  S.  5  169 
Hallinger  v.  Davis,  146  U.  S. 

314  274 

Hamilton  v.  Dillin,  21  Wall. 

73  18 

v.  V.,  S.  &  P.  E.,  119  U. 

S.  280  84 

Hamilton  Co.  v.  Massachu- 
setts, 6  Wall.  632  45 
Hammond  v.  Johnston,  142 

U.  S.  73  224 

Hampton  v.  McConnel,  3 

Wheat.  234  283 

Hancock  Nat.  Bank  v.  Far- 

num,  176  U.  S.  640  288 
Hanford  v.  Davies,  163  U.  S. 

273  139,  140 

Hanley  v.  Donoghue,  116  U.  S. 

1  230,  284 

v.  K.  C.  S.  By.,  187  U.  S. 

617  68,  102 

Hanover  Nat.  Bank  v.  Moyses, 

186  U.  S.  181  138,  251,  274 
Hans  v.  Louisiana,  134  U.  S. 

1  181,  205,  262,  263 

Hans  Nielsen,  Petitioner,  131 

U.  S.  176  250 

Hardin  v.  Jordan,  140  U.  S. 

371  72 

Hare  v.  L.  &  N.  E.,  2  J.  &  H. 

Ch.  80  131 

Harkrader  v.  Wadley,  172  U. 

S.  148  225,  266,  272 

Harman  v.  Chicago,  147  U.  S. 

396  23,  87,  106 

Harris  v.  Dennie,  3  Pet.  292  270 
v.  Hardeman,  14  How. 

334  273,  284 

Hartman  v.  Greenhow,  102 

U.  S.  672  169 

Hauenstein  v.  Lynham,  100 

U.  S.  483  238 

Havemeyer  v.  Iowa  County,  3 

Wall.  294  139 

Haver  v.  Yaker,  9  Wall.  32  239 
Hawaii  v.  Mankichi,  190  U.  S. 

197  12,  13 

Hawker  v.  New  York,  170  U. 

S.  189  185,  187 


Hawthorne   v.   Calef,   2   Wall. 

10  147 

Hayburn's  Case,  2  Dall.  409 

221,  223 
Hayes  v.  Missouri,  120  U.  S. 

68  320 

v.  Pratt,  147  U.  S.  557       210 
Hays  v.  P.   M.   S.   S.  Co.,   17 

How.  596  57,  103,  106 

H.    Bridge    Co.   v.    Henderson 

City,  141  U.  S.  679         140 
v.  Henderson     City,     173 

U.  S.  592  278 

Head  v.  A.  Mfg.  Co.,  113  U.  S. 

9  277 

v.  University,     19     Wall. 

526  180 

Head  Money  Cases,  The,   112 

U.  S.  580 

23,  36,  40,  102,  238 
Heidritter    v.    Elizabeth    Oil- 
Cloth    Co.,    112    U.    S. 

294  272 

Henderson  v.  Mayor  of  N.  Y., 

92  U.  S.  259    57,  105,  237 
Hennington    v.    Georgia,    163 

U.  S.  299  98 

Hepburn  v.  Griswold,  8  Wall. 

603  20 

v.  The    School    Directors, 

23  Wall.  480  50,     51 

H.  F.  I.  Co.  v.  C.,  M.  &  St.  P. 

By.,  175  U.  S.  91 

210,  241,  243 
H.  G.  L.  Co.  v.  Hamilton  City, 

146  U.  S.  258  148,  165,  175 
Hibben   v.    Smith,    191    U.    S. 

310  277 

Hickey's  Lessee  v.  Stewart,  3 

How.  750  284 

H.  I.  Co.  v.  Augusta,  93  U.  S. 

116  53,  174 

v.  Morse,  20  Wall.  445       307 
v.  New   York,   134   U.   S. 

594  45,  316 

Higgins  v.  Butcher,  Yelv.  89     208 
Hills  v.  Exchange  Bank,   105 

U.  S.  319  51 

Hilton  v.  Guyot,  159  U.  S.  113  281 
Hine,  The,  v.  Trevor,  4  Wall. 

555  208,  209,  269 

Hinson  v.  Lott,  8  Wall.  148 

55,  92,  302 
H.  M.  L.  I.  Co.  v.  Warren,  181 

U.  S.  73  320 

Hobart  v.  Drogan,  10  Pet.  108 

209,  266 
Hodgson  v.  Vermont,  168  U.  S. 

262  274 


XXIV 


TABLE    OF    CASES    CITED. 


The  references  are  to  the  pages. 


Holden  v.  Hardy,  169  U.  S.  366 

248,  274,  278,  298,  314,  319 
v.  Minnesota,    137    U.    S. 

483  187,  280 

Holland  v.  Challen,  110  U.  S. 

15  243 

Hollingsworth    v.   Virginia,    3 

Dall.  378  258 

Hollins  v.  B.  C.  &  I.  Co.,  150 

U.  S.  371  243,  265 

Holmes   v.    Jennison,    14   Pet. 

540  191,  292,  299 

v.  Walton,  9  N.  J.  L.  427  233 
Holt  v.  I.  Mfg.  Co.,  176  U.  S. 

68  206,  270 

Holyoke    Co.    v.    Lyman,    15 

Wall.   500  166 

Home  Ins.  Co.  v.  Augusta,  93 

U.  S.  116  53,  174 

v.  New  York,   134  U.   S. 

594  45 

Hooe  v.  Jamieson,  166  U.  S. 

395  210 

Hooker  v.  Burr,  194  U.  S.  415 

143,  146 
v.  Los  Angeles,  188  U.  S. 

314  224,  276,  277 

Hooper  v.  California,   155  U. 

S.   648  63,  304,  306 

Hopkins  v.  McLure,  133  U.  S. 

380  224 

v.  U.  S.,  171  U.  S.  578 

67,  123,  125,  128 

Hopt  v.  People,  104  U.  S.  631  251 
v.  Utah,    110    U.    S.    574 

186,  251 
v.  Utah,    114   U.    S.    488, 

120  id.  430  251 

Hornbuckle     v.     Toombs,     18 

Wall.  648  9 

Homer  v.  U.  S.,  143  U.  S.  570  238 
Hornthall  v.  The  Collector,  9 

Wall.  560  215 

Houston  v.  Moore,  5  Wheat.  1 

4,  217,  244,  268 
Howard   v.   De   Cordova,    177 

U.   S.  609  285 

v.  Fleming,  191  U.  S.  126 

224,  258,  322 

v.  U.  S.,  184  U.  S.  676         206 
Hoyt   v.   Sprague,   103    U.    S. 

613  299 

H.  S.  M.  Co.  v.  New  York,  143 
U.   S.  305 

304,  305,  306,  315 
Hughes  v.  Edwards,  9  Wheat. 

489  238 

Huling  v.  K.  V.  Ey.  &  Imp. 

Co.,  130  U.  S.  559  277 


Humphrey  v.  Pegues,  16  Wall. 

244  162,  163,  167 

Hunt  v.  Hunt,  131  U.  S.  clxv  148 
v.  Palao,  4  How.  589  223 

Huntington  v.  Attrill,  146  U. 

S.  657  288 

Hurtado     v.     California,     110 

U.  S.  517  274 

Huse  v.  Glover,  119  U.  S.  543 

23,  84,     87 

Hyatt  v.  People,  188  U.  S.  691  195 
Hyde  v.   Stone,   20   How.   170 

210,  271 

Hylton  v.  U.  S.,  3  Dall.  171  30,     34 
H.  &  T.  C.  E.  v.  Texas,  177 

U.  S.  66 

141,  148,  149,  190,  215,  232 
H.  &  T.  C.  E.  v.   Texas,  170 

U.  S.  243  139,  161 

I.    C.    C.   v.   A.    M.   Ey.,    168 

U.  S.  144  110,  112 

v.  A.,  T.  &  S.  F.  E.,  149 

U.  S.  264  110 

v.  Baird,  194  U.  S.  25  113 
v.  Brimson,  154  U.  S.  447 

109,  110 
v.  B.  &  O.  E.,  145  U.  S. 

263  111 

v.  C.,  N.  O.  &  T.  P.  Ey., 

167  U.  S.  479  110 

v.  D.,  G.  H.  &  M.  Ey.,  167 

U.  S.  633  111 

v.  L.  &  N.  E.,  190  U.  S. 

273  113 

I.  C.  E.  v.  Adams,  180  U.  S.  28  263 

v.  Chicago,  176  U.  S.  646  141 

v.  Decatur,  147  U.  S.  190      24 

v.  Illinois,  146  U.  S.  387 

71,  148,  149 
v.  Illinois,  163  U.  S.  142 

99,  101 
v.  Illinois,   184  U.   S.   77 

71,  149 
I.  C.  Ey.  v.  Iowa,  160  U.  S.  389 

273,  274,  276 
I.  C.  &  I.  Co.  v.  Gibney,  160 

U.  S.  217  215 

I.  L.  I.  Co.  v.  Lewis,  187  U.  S. 

335  313,  318 

Indiana  v.  Kentucky,  136  U.  S. 

479  211 

In  re  Ayers,  123  U.  S.  443  180,  261 
Blake,  175  U.  S.  114  267 

Brown,  135  U.  S.  701  143 
Chapman,  166  U.  S.  661  18 
Converse,  137  U.  S.  624  276 
Cooper,  143  U.  S.  472  228 
Coy,  127  U.  S.  731  296 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XXV 


In  re  Debs,  158  U.  S.  564 

4,  126,  246,  274 
Debs,  64  Fed.  724  126 
Duncan,  139  U.  S.  449  225,  282 
Frederich,  149  U.  S.  70 

215,  225 

Garnett,  141  U.  S.  1  201,  243 
Green,  134  U.  S.  377  296 

Hans  Nielsen,   131  U.  S. 

176  250 

Kemmler,   136   U.   S.   436 

257,  273,  298 

Lennon,  166  U.  S.  548  206 
Lockwood,  154  U.  S.  116  298 
Loney,  134  U.  S.  372 

215,  225,  270 
Manning,  139  U.  S.  504 

276,  322 
McKenzie,  Petitioner,  180 

U.  S.  536  250 

Neagle,  135  U.  S.  1 

18,  19,  206, 
215,  225,  266,  270 
Quarles    and    Butler,    158 

U.  S.  532  19 

Eahrer,  140  U.  S.  545  96 
Eapier,  143  U.  S.  110  18,  309 
Eoss,  140  U.  S.  453  19,  246 
Shibuya  Jugiro,  140  U.  S. 

291  313 

Swan,  150  U.  S.  637  250 

Tyler,  149  U.  S.  164  272 

Watts  and  Sachs,  190  U. 

S.  1  266 

Iowa  v.  Illinois,  147  U.  S.  1     211 
I.  S.  S.  Co.  v.  Tinker,  94  U.  S. 

238  44,  75 

Jackson   v.    Chew,   12   Wheat. 

153  241 

v.  Lamphire,  3  Pet.  280     143 
Ex  parte,  96  U.  S.  727        18 
Jaehne  v.  New  York,  128  U.  S. 

189  187 

James  v.  Bowman,  190  U.  S. 

127  293 

James  Gray,  The,  v.  The  John 

Fraser,  21  How.  184  78,  100 
Japanese  Immigrant  Case,  189 

U.  S.  86     19,  232,  251,  297 
Jefferson    Branch    Bank    v. 
Skelly,  1  Bl.  436 

52,  141,  162,  175 
Jennings  v.  C.  E.  C.  Co.,  147 

U.  S.  147  41,  43,  316 

Johnson  v.   N.   Y.  L.   I.   Co., 

187  U.  S.  491  282 

v.  Powers,  139  U.  S.  156 

285,  288 


Johnson  v.  Eisk,  137  U.  S.  300  224 
v.  Sayre,   158    U.    S.    109 

244,  247 
Jones    v.    Andrews,    10    Wall. 

327  215 

v.  Brim,   165  U.   S.   180 

274,  318 

v.  Soulard,  24  How.  41         71 
v.  U.  S.,   137  U.  S.  202 

216,  228 
Joplin   v.   S.   M.   L.   Co.,    191 

U.   S.   150  175 

Juilliard    v.     Greenman,     110 

U.  S.  421       4,  19,  21,  234 
Justices,    The,    v.    Murray,    9 

Wall.  274  257 

Kansas  v.  Colorado,  185  U.  S. 

125  212 

Kansas  Indians,  5  Wall.  737       45 
Kate,  The,  164  U.  S.  458  208 

Kauffman     v.     Wooters,     138 

U.  S.  285  273 

Kearney,  Ex  parte,  7  Wheat. 

38  250 

Keith  v.  Clark,  97  U.  S.  454 

2,  138,  169 
Kelley  v.  Ehoads,  188  U.  S.  1 

55,  57,  71 
Kelly  v.  Pittsburgh,  104  U.  S. 

78  24,  247,  277 

Kemmler,  In  re,  136  U.  S.  436 

257,  273,  298 

Kendall  v.  U.  S.,  12  Pet.  521  229 
Kennard  v.  Nebraska,  186 

U.  S.  304  206 

Kennett  v.  Chambers,  14  How. 

38  228 

Kentucky  v.  Dennison,  24  How. 

66  193,  194,  204,  213,  260 
Kentucky  E.  Tax  Cases,  115 

U.  S.  321       277,  316 
Kepner  v.  U.  S.,  195  U.  S.  100 

251,  252 

Keyes  v.  U.  S.,  109  U.  S.  336  244 
K.    I.    Co.    v.    Harbison,    183 

U.  S.  13  176,  279 

Kidd  v.  Alabama,  188  U.  S. 

730  41,  306,  316 

v.  Pearson,  128  U.  S.  1       278 
Kilbourn    v.    Thompson,    103 

U.  S.  168  18 

Kimmish  v.  Ball,  129  U.  S.  217 

81,  300 
King  v.  Mullins,  171  U.  S.  404 

40,  277 
v.  Portland,  184  U.  S.  61 

24,  277 
Kirby  v.  U.  S.,  174  U.  S.  47      255 


XXVI 


TABLE   OF    CASES    CITED. 
The  references  are  to  the  pages. 


Kirtland     v.     Hotchkiss,     100 

U.  S.  491  23,  41,     42 

Knatchbull  v.  Hallett,  13  Ch. 

Div.   712  237 

Knowles   v.    G.   &   C.   Co.,   19 

Wall.  58  283,  287 

Knowlton  v.  Moore,  178  U.  S. 

41  31,     36 

Knox   v.    Exchange   Bank,    12 

Wall.  379  140 

Koenigsberger  v.  E.  S.  M.  Co., 

158  U.  S.  41  210 

Kohl  v.  U.  S.,  91  U.  S.  367         19 
Koshkonong    v.    Burton,    104 

U.  S.  668  143,  146 

K.  P.  E.  v.  A.,  T.  &  S.  F.  E., 

112  U.  S.  414  206 

Kreiger  v.  Shelby  E.,  125  U.  S. 

39  140 

Kring  v.  Missouri,  107  U.  S. 

221  184,  185 

Krippendorf     v.     Hyde,     110 

U.  S.  276  273 

K.  W.   Co.  v.   Knoxville,   189 

U.   S.   434        140,  178,  278 
K.  W.  P.  Co.  v.  G.  B.  &  M.  C. 

Co.,  142  U.  S.  254 

215,  277,  278 

K.   &   H.   Bridge   Co.   v.   Illi- 
nois, 175  U.  S.  626   54     85 
K.  &  W.  E.  v.  Missouri,  152 

U.  S.  301  53,  150,  174 

Laing   v.   Eigney,    160   U.    S. 

531  282 

Lake  County  v.  Graham,  130 

U.  S.  674         148,  149,  150 
v.  Eollins,  130  U.  S.  662 

139,  148,  149 
Lammon  v.  Feusier,  111  U.  S. 

17  273 

Lampasas  v.  Bell,  180  U.   S. 

276  206,  228 

Landes  v.  Brant,  10  How.  348  283 
Lane    County    v.    Oregon,     7 

Wall.  71  20 

Lange,  Ex  parte,  18  Wall.  163 

250,  252 
Langford  v.  U.  S.,  101  U.  S. 

341  3 

Lascelles  v.  Georgia,  148  U.  S. 

537  194 

L.  A.  S.  M.  Co.  v.  U.  S.,  175 

U.  S.  423  228 

Lawler  v.  Walker,  14  How.  149  215 
Lawton   v.   Steele,    152   U.    S. 

133  274 

L.    C.    Co.    v.    McCreery,    141 

U.  S.  475  272 


L.,   C.   &   C.   E.   v.   Letson,    2 

How.  497  262,  303 

League  v.  De  Young,  11  How. 

185  138,  143 

v.  Texas,    184   U.   S.    156 

40,  182,  183,  277 
Leeper  v.  Texas,  139  U.  S.  462 

273,  282 
Legal  Tender  Cases,  12  Wall. 

457  19,  20,  232 

Leigh  v.  Green,  193  U.  S.  79  277 
Leisy  v.  Hardin,  135  U.  S.  100 

69,  91,  94,  96,  100 
Leloup  v.  Port  of  Mobile,  127 

U.   S.  640  56,  135 

Lem  Moon  Sing  v.  U.  S.,  158 

U.  S.  538  19 

Lennon,  In  re,  166  U.  S.  548     206 
Lent  v.  Tillson,  140  U.  S.  316 

276,  277 

Leon  v.  Galceran,  11  Wall.  185  269 
Leovy  v.  U.  S.,  177  U.  S.  621 

82,     84 
Leroux  v.  Hudson,  109  U.   S. 

468  266 

Lessee  of  Hickey  v.  Stewart,  3 

How.  750  284 

L.   G.   Co.   v.   C.   G.   Co.,   115 

U.  S.  683  169 

L.  G.  L.  Co.  v.  Murphy,  170 

U.  S.  78  177 

License  Cases,  5  How.  504 

65,  95,  100 
License  Tax  Cases,  5  Wall.  462 

26,  53,  70,  174 
L.  I.  Co.  v.  French,  18  How. 

404  284,  286,  306 

v.  Massachusetts,  10  Wall. 

566  63,  303,  305,  306 

Lincoln   v.  Power,   151   U.   S. 

436  265 

Lincoln  County  v.  Luning,  133 

U.  S.  529  262 

Lionberger  v.  Eouse,   9  Wall. 

468  49 

Li   Sing  v.  U.   S.,   180  U.   S. 

486  297 

Livingston  v.  M.  I.  Co.,  6  Cr. 

274  229 

v.  Moore,  7  Pet.  469  182,  183 
v.  Story,  9  Pet.  632  243 

L.  I.  W.  Co.  v.  Brooklyn,  166 

U.  S.  685  176,  277 

Lloyd  i).  Matthews,  155  U.  S. 

222  282 

L.,  N.  A.  &  C.  Ey.  v.  L.  T.  Co., 

174  U.  S.  552          303,  305 
L.,  N.  O.  &  T.  Ey.  v.  Missis- 
sippi, 133  U.  S.  587  78,     98 


TABLE   OF    CASES   CITED. 
The  references  are  to  the  pages. 


XXV11 


Loan    Assn.     v.     Topeka,     20 

Wall.  655  24 

Locke  v.  New  Orleans,  4  Wall. 

172  183 

Lockwood,  In  re,  154  U.  S.  116  298 
Loeb    v.    Columbia    Township 

Trustees,  179  U.  S.  472  139 
Logan  v.  U.  S.,  144  U.  S.  263 

4,     19 
Loney,  In  re,  134  U.  S.  372 

215,  225,  270 
Looker  v.  Maynard,  179  U.  S. 

46  165 

Lord  v.  S.  S.  Co.,  102  U.  S. 

541  68,  207 

Los  Angeles  v.  L.  A.  W.  Co., 
177  U.  S.  558 

148,  169,  178 
Lottawanna,  The,  21  Wall.  558 

207,  208,  243,  266 
Lottery  Case,   188   U.   S.   321 

64  119 

Loughborough     v.     Blake,     5 

Wheat.  317       9,  18,  27,  37 
Louisiana  v.  Jumel,  107  U.  S. 

711  260,  261 

v.  Mayor  of  New  Orleans, 
109  U.  S.  285 

147,  148,  154,  275 
v.  New  Orleans,  102  U.  S. 

203  144,  180 

v.  Pilsbury,     105     U.     S. 

278  148,  153,  155 

v.  Steele,   134  U.   S.   230 

260,  262 

v.  Texas,  176  U.  S.  1  212 
Low  v.  Austin,  13  Wall.  29  43,  88 
Lowe  v.  Kansas,  163  U.  S.  81 

274,  318 
L.  S.  &  M.  S.  Ey.  v.  Ohio,  165 

U.  S.  365  83,  84 

v.  Ohio,  173  U.  S.  285          99 
v.  Smith,  173  U.  S.  684 

lOla,  278,  304,  313,  314 
Luther  v.  Borden,  7  How.  1 

228,  229,  327 
Luxton  v.  N.  E.  Bridge  Co., 

153  U.  S.  525  19 

L.  V.  E.  v.  Pennsylvania,  145 

U.  S.  192  68,  104 

j.  W.  Co.  v.  Clark,  143  U.  S.  1  165 
v.  Easton,  121  U.  S.  388 

139,  140 
rle  v.  Eichards,   9   S.  &.  E. 

356  235 

jyng  v.  Michigan,  135  U.  S. 

161  91 

&  G.  W.  S.  Co.  v.  P.  I.  Co., 

129  U.  S.  397  223,  229,  243 


L.   &  J.   F.  Co.  v.  Kentucky, 

188  U.  S.  385  42,  277 

L.   &   N.   E.   v.  Behlmer,   175 

U.  S.  648  112 

v.  Eubank,  184  U.  S.   27 

101,  113 
v.  Kentucky,    161    U.    S. 

677  176 

v.  Kentucky,    183    U.    S. 
503   149,  175,  176,  177 

178,  279,  313,  315,  321 
v.  Palmes,  109  U.  S.  244  141 
v.  Schmidt,  177  U.  S.  230 

273    274 

v.  Woodson,  134  U.  S.  614  274 
L.   &   P.   Co.   v.   Mullen,    176 

U.  S.  126  23,  87,     89 

Machine  Co.  v.  Gage,  100  U.  S. 

676  55,  92,  302 

Mackin   v.   U.    S.,    117   U.    S. 

348  247 

Madrazzo,  Ex  parte,  7  Pet.  627  261 
Mager  v.  Grima,  8  How.  490 

22,     41 
Magoun  v.  I.  T.  &  S.  Bank,  170 

U.  S.  283  40,  41,  316 

Maguire  v.  Card,  21  How.  248  209 
Mahon  v.   Justice,   127  U.   S. 

700  194 

Maine  v.  G.  T.  Ey.,  142  U.  S. 

217  55,  56,  103,  305 

Mallett  v.  North  Carolina,  181 

U.  S.  589         184,  187,  320 
Manchester    v.    Massachusetts, 

139  U.  S.  240  72 

Manning,  In  re,  139  U.  S.  504 

276,  322 

Marbury  v.  Madison,  1  Cr.  137 
3,  204,  220, 
229,  231,  232,  234 
Markuson  v.  Boucher,  175  U. 

S.  184  225 

Marrow  v.  Brinkley,  129  U.  S. 

178  276 

Marsh  v.  N.,  S.  &  Co.,  140  U.  S. 

344  206,  270 

Marshall   v.   B.   &  O.   E.,    16 

How.  314  303 

Marshall  v.  Holmes,  141  U.  S. 

589  19,  225 

Martin  v.  B.  &  O.  E.,  151  U.  S. 

673  19,  225 

v.  Hunter 's      Lessee,       1 

Wheat.  304 

1,  2,  3,  7,  15,  19,   204, 

205,  217,  218,  234,  265 
v.  Mott,  12  Wheat.  19  244 
v.  Waddell,  16  Pet.  367  71 


XXV111 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


Maryland    v.    B.    &    O.    E.,    3 

How.  534  170 

Mason  v.  Haile,  12  Wheat.  370  143 

v.  Missouri,  179  U.  S.  328  293 

Ex  parte,  105  U.  S.  696      244 

Massachusetts  v.  W.  U.  T.  Co., 

141  U.  S.  40  54,  134 

Matthew  v.   A.   P.   of   N.   Y., 

136  N.  Y.  333  125 

Mattingly  v.  N.  W.  V.  K.,  158 

U.  S.  53  215 

Mattox  v.  U.  S.,  156  U.  S.  237  255 
Maxwell  v.  Dow,  176  U.  S.  581 
234,  237,  274, 
298,  311,  320,  322 
v.  Stewart,    22    Wall.    77 

283,  284,  286 
May  v.  New  Orleans,  178  U.  S. 

496  88 

Mayhew  v.  Thatcher,  6  Wheat. 

129  284 

Maynard  v.  Hill,  125  U.  S.  190  148 
Mayor  v.  Cooper,  6  Wall.  247 

204,  206,  225 

v.  Lord,  9  Wall.  409  267 

McAllister  v.  U.  S.,  141  U.  S. 

174  8,       9 

McCall  v.  California,  136  U.  S. 

104  56,  105,  305 

McClung  v.  Silliman,  6  Wheat. 

598  270 

McCracken     v.     Hayward,     2 

How.  608  146 

McCray  v.  U.  S.,  195  U.  S.  27 

26,  251 
McCready  v.  Virginia,  94  U.  S. 

391  72,  299,  301,  302 

McCulloch     v.     Maryland,     4 

Wheat.  316 

1,  3,  4,  15,  16, 
17,  22,  48,  65,  237 
McCullough    V.    Virginia,    172 

U.  S.  102  141,  169 

McDonald     v.     Massachusetts, 

180  U.  S.  311  187,  317 

McElmoyle  v.   Cohen,  13  Pet. 

312  283 

McElrath  v.  U.  S.,  102  U.  S. 

426  209,  255 

McElvaine  v.  Brush,  142  U.  S. 

155  298 

McGahey     v.     Virginia,     135 

U.  S.  662         169,  181,  263 
MeGuire  v.  The  Commonwealth, 

3  Wall.  387  47,     70 

McKane  v.  Durston,  153  U.  S. 

684  301 

McKenzie,    Petitioner,    In   re, 

180  U.  S.  536  250 


McKim  v.  Voorhies,  7  Cr.  279  270 
McMillan  v.  McNeill,  4  Wheat. 

209  147,  150,  152 

McMillen  v.  Anderson,  95  U.  S. 

37  277 

McNiel,    Ex    parte,    13    Wall. 

236  76,  266 

McNitt  v.  Turner,  16  Wall.  352  283 
McNulty  v.  Batty,  10  How.  72  223 
v.  California,    149    U.    S. 

645  274 

McPherson     v.     Blacker,     146 

U.  S.  1  296 

M.  C.  P.  &  S.  Co.  v.  Ins.  Co.  of 

N.  A.,  151  U.  S.  368        112 
Medley,  Petitioner,  134  U.  S. 

160  185,  215,  225 
Meigs  v.  McClung 's  Lessee,  9 

Cr.  11  264 

Memphis  v.  U.  S.,  97  U.  S.  293 

148,  153,  155 
Memphis   Bank   v.    Tennessee, 

161  U.  S.  186    53,  164,  174 
Mercantile  Bank  v.  New  York, 

121  U.  S.  138  49,     50 

Merchants  &  Manufacturers' 
Bk.  v.  Pennsylvania, 
167  U.  S.  461 

41,  52,  277,  316 
Meriwether     v.     Garrett,     102 

U.   S.   472          24,  148,  155 
M.   E.  Ey.   v.   Minnesota,   134 

U.  S.  467  177,  278 

Metcalf  v.  Watertown,  128  U. 

S.  586  206 

Metropolitan    Bank    v.    Clag- 

gett,  141  U.  S.  520          224 
M.   G.   Co.  v.   Shelby   County, 

109  U.  S.  398    41,  53,  174 
Middleton    v.    Mullica    Town- 
ship, 112  U.  S.  433  25 
Miller  v.  C.  E.,  168  U.  S.  131     282 
v.  State,  15  Wall.  478          166 
Milligan,  Ex  parte,  4  Wall.  2 

244,  245,  250 

Mills  "v.  Brown,  16  Pet.  525        215 
v.  Duryee,  7  Cr.  481  283 

v.  Green,  159  U.  S.  651       228 
v.  St.     Clair     County,     8 

How.  581  175 

Minder  v.  Georgia,  183  U.  S. 

559  274,  322 

Minnesota  v.  Barber,  136  U.  S. 

313  81,  90,  237 

v.  Brundage,    180    U.    S. 

499  18,  225 

-u.  Hitchcock,    185    U.    S. 

373  213 

v.  N.  S.  Co.,  184  U.  S.  199  213 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XXIX 


Minnesota   v.   N.   S.   Co.,    194 

U.  S.  48  126,  215 

Minor  v.  Happersett,  21  Wall. 

162  293,  311 

Minot  v.  P.,  W.  &  B.  E.,   18 

Wall.  206  53,  56,  102 

Mississippi  v.  Johnson,  4  Wall. 

475  229 

Mississippi  Mills  v.  Cohn,  150 

U.  S.  202  243,  265 

Missouri  v.  Andriano,   138  U. 

S.  496  204,  224 

v.  Dockery,  191  U.  S.  165 

41,  316 

v.  Harris,  144  U.  S.  210  140 
v.  Illinois,  180  U.  S.  208  212 
v.  Iowa,  7  How.  660  191,  211 
v.  Lewis,  101  U.  S.  22 

275,  322 

v.  Walker,  125  U.  S.  339     169 
Mitchell  v.  Clark,  110  U.  S.  633  265 
v.  First    Nat.    Bank,    180 

U.  S.  471  282 

v.  Harmony,  13  How.  115  264 
v.  Smale,  140  U.  S.  406 

72,  206 
M.,  K.  &  T.  Ey.  v.  Haber,  169 

U.  S.  613  81 

v.  May,  194  U.  S.  267  316 
v.  McCann,  174  U.  S.  580  99 
v.  Missouri  E.  &  W. 

Comrs.,  183  U.  S.  53   210 
M.  L.  I.  Co.  v.  McGrew,  188 

U.  S.  291  224 

M.  N.  Co.  v.  U.  S.,  148  U.  S. 

312  253 

Mobile  v.  Watson,   116   U.   S. 

289  148,  153,  155 

Mogul  S.  S.  Co.  v.  McGregor, 

23  Q.  B.  D.  598  116 

Montague  v.  Lowry,  193  U.  S. 

38  127 

Montalet  v.  Murray,  4  Cr.  46  215 
Montello,  The,  20  Wall.  430  82,  209 
Montgomery  v.  Portland,  190 

U.  S.  89  83 

Moore  v.  Greenhow,  114  U.  S. 

338  145 

v.  Illinois,  14  How.  13  269 
v.  Missouri,  159  U.  S.  673 

275,  298,  317 
v.  U.  S.,  91  U.  S.  270         235 

fran  v.  Horsky,  178  U.  S.  205  224 
v.  New  Orleans,  112  U.  S. 
69  57,  106 

v.  Sturges,  154  U.  S.  256 
208,  209,  269,  272 
Morgan  v.  Louisiana,  93  U.  S. 

217  52,  148,  150,  164 


Morgan  v.  Louisiana,  118  U. 

S.  455  24,     80 

v.  Parham,   16  Wall.   471 

57,  106 

Morley  v.  L.  S.  &  M.  S.  Ey., 
146  U.  S.  162 

144,  146,  148,  154,  278 
Mormon  Church  v.  U.  S.,  136 

U.  S.  1  9,  10,  19,  251,  309 
Moses  Taylor,  The,  4  Wall.  411 

205,  208,  209,  217,  218,  269 
Motes  v.  U.  S.,  178  U.  S.  458  255 
M.  P.  Ey.  v.  Humes,  115  U.  S. 

512  100,  316 

v.  Mackey,  127  U.  S.  205 

100,  278,  304,  314,  315 
v.  Nebraska,    164    U.    S. 

403  278,  280 

M.    S.    Co.    v.   Louisiana,    118 

U.  S.  455  24,     80 

M.  S.  S.  Co.  v.  McGregor,  23 

Q.  B.  D.  598  116 

M.  T.  Co.  v.  Mobile,  187  U.  S. 

479  2,  72,  149,  299 

Mugler  v.  Kansas,   123  U.  S. 

623  100,  237,  278,  298 

Muller  v.  Dows,  94  U.  S.  444  215 
Mumma  v.  The  Potomac  Co., 

8  Pet.  281  175 

Munn  v.  Illinois,  94  U.  S.  113 

98,  278,  315 
Murdock  v.   Ward,  178  U.   S. 

139  31,     36 

Murphy  v.  Eamsey,  114  U.  S. 

15  9,  187 

Murray  v.  Charleston,  96  U.  S. 

432  53,  169 

Murray's  Lessee  v.  H.  L.  &  I. 

Co.,  18  How.  272  247,  250 
Myrick  v.  M.  C.  E.,  107  U.  S. 

102  242 

M.  &  L.  E.  v.  C.  E.,  66  N.  H. 

100  131 

M.  &  M.  Bank  v.  Pennsylvania, 
167  U.  S.  461 

41,  52,  277,  316 

M.  &  M.  E.  v.  Ward,  2  Bl.  485     84 
M.  &  O.  E.  v.  Tennessee,  153 

U.    S.    486         52,  141,  162 
M.  &  St.  L.  E.  v.  Minnesota, 
186  U.   S.  257 

lOlb,  313,  315 
v.  Minnesota,    193    U.    S. 

53  100,  279 

M.  &  St.  L.  Ey.  v.  Beckwith, 
129  U.  S.  26 

100,  278,  304,  314,  316 
v.  Emmons,  149  U.  S.  364 

176,  316 


XXX 


TABLE   OF    CASES   CITED. 


The  references  are  to  the  pages. 


M.  &  St.  L.  By.  y.  Gardner, 

177  U.  S.  332  175 

v.  Herrick,  127  U.  S.  210 

278,  304,  314,  315 

Nash  v.  Lull,  102  Mass.  60       270 
Natal  v.  Louisiana,  139  U.  S. 

621  274,  321 

Nathan  v.  Louisiana,  8  How. 

73  55,     63 

National    Bank    v.    Chapman, 

173  U.  S.  205  49,     50 

v.  Commonwealth,  9  Wall. 

353  47,     48 

v.  U.  S.,  101  U.  S.  1  31 

Nations  v.  Johnson,  24  How. 

195  273,  285 

N.  B.  Co.  v.  U.  S.,  105  U.  S. 

470  83 

N.    C.   By.   v.   Maryland,    187 
U.  S.  258 

53,  164,  165,  168,  174 
N.,  C.  &  St.  L.  By.  v.  Alabama, 
128  U.  S.  96 

24,  98,  246,  278 
Neagle,  In  re,  135  U.  S.  1 

18,  19,  206, 
215,  225,  266,  270 
Neal  v.  Delaware,  103  U.   S. 

370  295 

Nebraska  v.  Iowa,  145  U.  S. 

519  211 

Nelson  v.  St.  Martin's  Parish, 
111  U.  S.  716 

148,  153,  155 
Nevada  Bank  v.  Sedgwick,  104 

U.  S.  Ill  23 

New  Hampshire  v.  Louisiana, 

108  U.  S.  76  211,  261 

New  Jersey  v.   New  York,   5 

Pet.  284  211 

v.  Wilson,  7  Cr.  164     52,  161 
v.  Yard,  95  U.   S.  104 

52,  162,  163,  165 
New      Orleans     v.     Citizens' 
Bank,  167  U.  S.  371 

53,  167,  174 

v.  Morris,  105  U.  S.  600  179 
v.  N.  O.  W.  W.,  142  U.  S. 

79  148,  170 

v.  Paine,  147  U.  S.  261     229 
v.  Stempel,  175  U.  S.  309 

40,     41 
Newton  v.  Commissioners,  100 

U.  S.  548  179 

New  York  v.  Barker,  179  U.  S. 

279  321 

v.  Connecticut,   4  Ball.   1  211 
v.  Eno,  155  U.  S.  89  225 


New  York  v.  Knight,  192  U. 

S.  21  56,  104 

v.  Louisiana,    108    U.    S. 

76  211,  261 

v.  Miln,  11  Pet.   102 

78,  79,  101 
v.  Boberts,  171  U.  S.  658 

54,  55,  304,  306,  315 
v.  Squire,  145  U.  S.  175 

176,  278,  317 

New  York  Indians,  5  Wall.  761     45 
N.  F.  &  P.  W.  v.  O.  W.  S.  Co., 

183  U.  S.  216          206,  289 
Nicol  v.  Ames,  173  U.  S.  509 

31,  36,  232 
Nielsen,  Petitioner,  131  U.  S. 

176  250 

Nishimura  Ekiu  v.  U.  S.,  142 

U.  S.  651  297 

N.    J.    N.    Co.    v.    Merchants' 

Bank,  6  How.  344  209 

N.  M.  B.  &  L.  Assn.  v.  Brahan, 

193  U.  S.  635          140,  224 
N.  M.  B.  v.  Maguire,  20  Wall. 

46  174 

N.,  M.  &  Co.  v.  Ohio,  3  How. 

720  97 

Noble  v.  U.  B.  L.  B.,  147  U.  S. 

165  229 

Nobles  v.  Georgia,  168  U.  S. 

398  274 

N.  O.  C.  &  L.  B.  v.  New  Or- 
leans, 143  U.  S.  192  53,  174 
v.  New  Orleans,  157  U.  S. 

219  142 

N.  O.  F.  Inspectors  v.  Glover, 

160  U.  S.  170  228 

N.  O.  G.  Co.  v.  L.  L.  Co.,  115 

U.  S.  650  138,  169 

North  Carolina  v.  Temple,  134 

U.  S.  22  260,  262 

Northern  Securities  Case,  193 
U.  S.  197 

64,  67,  122,  124, 

125,  127,  129,  131 
Norton  v.  Board  of  Comrs.  of 
Brownsville,  129  U.  S. 
479  148,  149 

v.  Shelby  County,  118  U. 

S.  425  204,  232 

Norwood  v.  Baker,  172  U.  S. 

269  24,  277,  316 

N.  O.  W.  Co.  v.  Louisiana,  185 

U.  S.  336  140 

N.  O.  W.  W.  v.  L.  S.  Co.,  125 

U.  S.  18  140 

v.  Bivers,   115  U.   S.  674  169 
N.  P.  B.  v.  Amato,  144  U.  S. 

465  206 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XXXI 


N.  P.  E.  v.  Colburn,  164  U.  S. 

383  206 

v.  Myers,  172  U.  S.  589       46 
N.  S.  Co.  v.  U.  S.,  193  U.  S.  197 
64,  67,  122,  124, 

125,  127,  129,  131 
Nugent     v.     Boyd,     3     How. 

426  268 

Nutting  v.  Massachusetts,  183 

U.  S.  553  63,  304 

N.  W.  Co.  v.  Newburyport,  193 

U.  S.  561  175 

N.  Y.,  L.  E.  &  W.  E.  v.  Penn- 
sylvania, 153  U.  S.  628 

22,  23,  43,  176,  304 
v.  Pennsylvania,  158  U.  S. 

431  55,  103 

N.  Y.  L.  I.  Co.  v.  Cravens,  178 

U.  S.  389  63,  304,  306 

N.  Y.,  N.  H.  &  H.  E.  v.  New 
York,  165  U.   S.  628 

99,  319 
N.  Y.  &  N.  E.  E.  v.  Bristol, 

151  U.  S.  556          165,  317 
N.    &   W.    E.   v.    Johnson,    15 

Wall.  195  21 

v.  Pendleton,    156    U.    S. 
667 

53,  168,  174,  175,  176,  178 
v.  Pennsylvania,    136    U. 

S.   114       56,  105,  304,  305 
N.  &  W.  Ey.  v.  Sims,  191  U.  S. 

441  55,     92 

Gates  v.  Nat.  Bank,  100  U.  S. 

239  242 

Ochiltree  v.  E.  Co.,  21  Wall. 

249  144 

Ogden  v.  Saunders,  12  Wheat. 
213  38,  147,  151, 

153,  173,  182,  237 
Ohio  v.  Dollison,  194  U.  S.  445 

247,  275,  298,  317 
v.  Thomas,  173  U.  S.  276 

18,  215,  225,  238,  270 
O.  I.  Co.  v.  Daggs,  172  U.  S. 

557  279,  303,  304,  314,  319 
Olcott  v.  The  Supervisors,  16 

Wall.  678  25,  139 

O.  L.  I.  &  T.  Co.  v.  Debolt,  16 

How.  416  139,  141,  175,  242 
O'Neil  v.  Vermont,  144  U.  S. 

323  257 

.  O.  Co.  v.  Indiana,  177  U.  S. 

190  278 

.  P.  Co.  v.  Aiken,  121  U.  S. 

444  23,     87 

v.  Oilman,  183  U.  S.  278 

40,  41,  53,  166,  280,  316 


Osborn  v.  Bank  of  the  U.  S., 
9  Wheat.  738      17,  48, 

206,  215,  228,  258,  264 
v.  Nicholson,  13  Wall.  654  310 
Osborne  v.  County  of  Adams, 
106  U.  S.  181,  109  id. 
I  24 

v.  Florida,  164  U.  S.  650 

56,  103 

v.  Mobile,   16  Wall.   479     135 
Otis  v.  Parker,  187  U.  S.  606  321 
Ottawa  v.  Carey,  108  U.  S.  110     25 
v.  National  Bank,  105  U. 

S.  343  25 

O.  W.  Co.  v.  Oshkosh,  187  U. 

S.  437  140,  143,  144 

Owensboro    v.    O.    W.    S.    Co., 

191  U.  S.  358          175,  177 
Owensboro      Nat.      Bank      v. 
Owensboro,    173   U.    S. 
664  51 

Owings  v.  Hull,  9  Pet.  607  229,  283 
v.  Speed,  5  Wheat.  420      138 
O.  &  M.  E.  v.  Wheeler,  1  Bl. 

286  215,  303,  304 

Pace  v.   Alabama,   106  U.   S. 

583  315 

v.  Burgess,  92  U.  S.  372 

29,     73 
Pacific  Nat.  Bank  v.  Mixter, 

124  U.  S.  721  270 

Packet  Co.  v.  Catlettsburg,  105 

U.  S.  559  23,     87 

v.  Keokuk,    95   U.    S.    80 

23,  87,  233 
v.  St.    Louis,    100    U.    S. 

423  23,     87 

Palmer  v.  McMahon,  133  U.  S. 

660  49,  50,  51,  277 

Pana  v.  Bowler,  107  U.  S.  529  242 
Parish  v.  Ellis,  16  Pet.  451  243 
Parkersburg  v.  Brown,  106 

U.   S.  487  24 

Parkinson  v.  U.  S.,  121  U.  S. 

281  247 

Parks,  Ex  parte,  93  U.  S.  18  250 
Parsons  v.  Bedford,  3  Pet. 

433  243,  255,  256 

v.  C.   &  N.   W.  Ey.,   167 

U.  S.  447  111,  112 

Passaic   Bridge   Case,   The,   3 

Wall.  782  84 

Passenger  Cases,  7  How.  283 

54,  57,  66,  105 
Patterson     v.     Kentucky,     97 

U.  S.  501  65,     70 

Patton    v.    Brady,    184   U.    S. 

608  31,  206 


XXX11 


TABLE   OF    CASES    CITED. 
The  references  are  to  the  pages. 


Paul  v.  Virginia,  8  Wall.  168 

63,  300,  303,  304,  305,  306 
Paulsen  v.  Portland,  149  U.  S. 

30  277 

Paup  v.  Drew,  10  How.  218       169 
Payne  v.  Hook,  7  Wall.  425      210 
P.,    C.,    C.    &    St.    L.    Ky.    v. 
Backus,  154  U.  S.  421 

40,  57,  277 
v.  Board  of  Pub.  Works, 

172  U.  S.  32  54,     85 

P.  Co.  v.  Adams,  189  U.  S.  420 

56,  103 

See  Packet  Co. 
Peake    v.    New    Orleans,    139 

U.  S.  342  24 

Peale  v.  Phipps,  14  How.  368 

267,  272 
Pearce   v.    Texas,    155   U.    S. 

311  195 

Pearsall  v.  G.  N.  By.,  161 
U.  S.  646 

142,  149,  165,  176,  177 
Pearson  v.  Yewdall,  95  U.  S. 

294  255,  277 

Pease  v.  Peck,  18  How.  595     242 
Peck  v.  Jenness,  7  How.  612 

267,  272 
Peete  v.  Morgan,  19  Wall.  581 

44,  74,     81 
Peik  v.  C.  &  N.  W.  Ky.,  94 

U.  S.  164  98,  176 

Pelton  v.  National  Bank,  101 

U.  S.  143  51 

Pennie  v.  Eeis,  132  U.  S.  464 

179,  280 
Penniman's    Case,    103    U.    S. 

714  143 

Pennoyer     v.     McConnaughy, 

140  U.  S.  1  263 

v.  Neff.  95  U.  S.  714 

249,  283,  285 

Pennsylvania  v.  W.  &  B. 
Bridge  Co.,  9  How. 
647,  11  id.  528  84 

v.  W.  &  B.  Bridge  Co.,  13 

How.  518          84,  239,  243 
v.  W.    &    B.    B.    Co.,    18 

How.  421  73,  83,     84 

Pennsylvania  College  Cases,  13 

Wall.  190  166 

People  v.  C.  G.  T.,  107  U.  S. 

59  57,  89,  105 

v.  Commissioners,   104  U. 

S.  466  56,     63 

v.  Commissioners  of  Taxes, 

2  Bl.  620  44 

17.  Commissioners  of  Taxes, 
94  U.  S.  415       51,  52,  150 


People  v.  Cook,  148  U.  S.  397 

53,  164,  165,  168,  174 
v.  The    Commissioners,    4 

Wall.    244  48 

v.  Weaver,  100  U.  S.  539 

50,     51 
Pepke  v.  U.  S.,  183  U.  S.  176 

11,  27,     38 
Permoli  v.  First  Municipality, 

3  How.  589  299 

Perrine  v.   C.  &  D.   C.   Co.,   9 

How.    172  175 

Pervear  v.  The  Commonwealth, 

5   Wall.   475        47,  70,  257 
Petit  v.  Minnesota,  177  U.  S. 

164  320 

P.  Ex.  Co.  v.  Seibert,  142  U.  S. 

339  41,     56 

P.    F.   A.   v.   New   York,    119 

U.  S.  110   63,  304,  305,  306 
P.  F.  &  M.  I.  Co.  v.  Tennes- 
see, 161  U.  S.  174 

53,  166,  174 
P.   G.   Co.  v.   North  Carolina, 

171  U.  S.  345  89 

P.  G.  &  C.  Co.  17.  Chicago,  194 

U.  S.  1  168,  176,  178 

Phelps     17.     Holker,     1     Ball. 

261  285 

Philadelphia  v.  The  Collector, 

5  Wall.  720  225 

Picard  v.  E.  T.,  V.  &  G.  B., 

130  U.  S.  637 

53,  166,  168,  174 
Pickard  1;.  P.   S.   C.  Co.,  117 

U.  S.  34  58,  105 

P.  I.  Co.  17.  Soule,  7  Wall.  433     31 
17.  Tennessee,    161    U.    S. 

193    52,  140,  150,  164,  174 
Pierce  v.  Carskadon,  16  Wall. 

234  146,  185,  188 

v.  Indseth,  106  U.  S.  546  229 
Pinney  v.   Nelson,   183   U.   S. 

144  140,  308 

Planters'    Bank    v.    Sharp,    6 

How.  301  169 

Pleasant  Township  v.  A.  L.  I. 

Co.,  138  U.  S.  67 

139,  141,  148,  149 
Plessy  17.  Ferguson,  163  U.  S. 

537  280,  298,  310,  318 

Plumley  17.  Massachusetts,  155 

U.  S.  461  47,     96 

Plummer  v.   Coler,   178   U.   S. 

115  44,     45 

P.  M.  Co.  v.  Pennsylvania,  125 

U.  S.  181  304,  305,  314,  315 
Poindexter  v.  Greenhow. 

See  Virginia  Coupon  Cases. 


TABLE    OF    CASES    CITED. 

The  references  are  to  the  pages. 


XXX111 


Polk 


Wendell,    9 


Lessee 

Cr.  87  240 

Pollard  v.  Hagan,  3  How.  212 

2,  72,  299 
Pollock  v.  F.  L.  &  T.  Co.,  157 

U.  S.  429  30,     34 

v.  F.  L.  &  T.  Co.,  158  U. 

S.  601  34,  39,  233 

Poole  v.  Fleeger,  11  Pet.  185     191 
Pope  v.   Williams,    193   U.   S. 

621  292 

Pound  v.  Turck,  95  U.  S.  459       84 
Powell    v.    Pennsylvania,    127 

U.  S.  678  315 

P.  P.  C.  Co.  v.  Hayward,  141 

U.  S.  36  103 

v.  Pennsylvania,  141  U.  S. 

18  22,  40,  57,  103 

P.  E.  v.  Maguire,  20  Wall.  36 

52,  162 
v.  Miller,  132  U.  S.  75 

176,  177 
v.  Napier  S.   Co.,   166  U. 

S.  280  209 

Presser  v.  Illinois,   116  U.  S. 

252  233,  298 

Prevost  v.  Greneaux,  19  How. 

1  239 

Prigg  v.  Pennsylvania,  16  Pet. 

539     19,  204,  235,  292,  299 
Prout    v.    Starr,    188    U.    S. 

537  263 

Providence  Bank  v.  Billings,  4 

Pet.  514  41,  53,  174 

Provident   Inst.   v.    Massachu- 
setts, 6  Wall.  611  45 
Provident  Inst.  for  Savings  v. 
Jersey  City,  113  U.  S. 
506                                      279 
Provident   Savings    Society  v. 

Ford,  114  U.  S.  635       206 
P.  E.  Eemoval  Cases,  115  U. 

S.  1  206 

P.   T.    C.   Co.  v.   Adams,   155 

U.   S.  688          54,  134,  305 
v.  Alabama,     155     IT.     S. 

482  210,  215,  221 

v.  Baltimore,    156    U.    S. 

210  24,  134 

v.  Charleston,    153   U.    S. 

692  56,  134 

v.  New   Hope,   192   U.   S. 

55  24 

v.  Taylor,    192    U.    S.    64 

24,  134 
P.  T.  Co.  v.  W.  U.  T.  Co.,  96 

U.   S.   1       62,  64,  134,  305 
Public      Clearing      House     v. 

Coyne,  194  U.  S.  497      251 


Pulliam  v.   Osborne,   17   How. 

471  272 

P.  &  S.  C.  Co.  v.  Bates,  156 

U.  S.  577     43,  55,  94,  104 
v.  Louisiana,    156    U.    S. 

590  54,     89 

P.  &  S.  S.  S.  Co.  v.  Pennsyl- 
vania, 122  U.  S.  326 

57,  65,  105 


Quarles  and  Butler,  In  re,  158 

U.  S.  532 
Queensbury  v.  Culver,  19  Wall. 


19 
25 
96 


Eahrer,  In  re,  140  U.  S.  545 
Ealls   County  Court  v.  U.   S., 

105  U.  S.  733  148,  153,  155 
Eandall  v.   Kreiger,   23   Wall. 

137  143 

Eapier,     In    re,     143    U.     S. 

110  18,  309 

Bash  v.  Farley,  159  U.  S.  263 

55,  92,  303 
Easmussen  v.  Idaho,  181  U.  S. 

198  81 

Eatterman   v.   W.   U.    T.    Co., 

127  U.  S.  411  56,  134 

E.  B.  Co.  v.  Brister,  179  U.  S. 

445  92 

E.  Co.  v.  Alabama,  101  U.  S. 

832  180 

v.  County     of     Otoe,     16 

Wall.  667  25 

v.  Ellerman,    105    U.     S. 

166  170 

v.  Falconer,  103  U.  S.  821  154 
v.  Fuller,  17  Wall.  560 

98,  113 

v.  Georgia,  98  U.  S.  359  165 
v.  Hamersley,  104  U.  S.  1  176 
v.  Heeht,  95  U.  S.  168  142 
v.  Husen,  95  U.  S.  465  81 
v.  Jackson,  7  Wall.  262  42 
v.  Koontz,  104  U.  S.  5  305 
v.  Lockwood,  17  Wall.  357  242 
v.  McClure,  10  Wall.  511 

138,  140 
v.  Mississippi,  102  U.   S. 

135  206 

v.  Nat.  Bank,  102  U.  S. 

14  242 

v.  Eichmond,     96     U.     S. 

521  101,  321 

v.  Eock,  4  Wall.  177  140,  215 
v.  Schurmeir,  7  Wall.  272  71 
v.  Tennessee,  101  U.  S. 

337  180,  181 

See  Ey.  Co. 


XXXIV 


TABLE    OP    CASES   CITED. 

The  references  are  to  the  pages. 


E.  Cos.  v.  Gaines,  97  U.  S.  697 

52,  53,  150,  164,  166,  167 
Eeagan  v.  F.  L.  &  T.  Co.,  154 
U.  S.  362 

Ida,  177,  313,  315 
v.  M.   T.   Co.,   154  U.   S. 

413  lOla 

Eeetz  v.  Michigan,  188  U.  S. 

505  187,  278 

Eeggel,  Ex  parte,  114  U.   S. 

642  193,  195 

Eeid  v.   Colorado,   187   U.   S. 

137  81,  232 

Eelfe  v.  Bundle,  103  U.  S.  222  308 
Eemoval  Cases,  100  U.  S.  457  225 
Eenaud  v.  Abbott,  116  U.  S. 

277  284 

Beynolds  v.  Stockton,  140  U. 

S.  254  285,  286 

v.  U.  S.,  98  U.  S.  145 

9,  254,  309 
E.  G.  E.  v.  Gomila,  132  U.  S. 

478  272 

Ehode    Island    v.    Massachu- 
setts, 12  Pet.  657 

2,  191,  211,  234,  235 
Eice  v.  E.  Co.,  1  Bl.  358  174 

Eichmond  v.  S.  B.  T.  Co.,  174 

U.  S.  761  134 

Eider  v.  U.  S.,  178  U.  S.  251  84 
Eidings  v.  Johnson,  128  U.  S. 

212  243 

Eiggs    v.    Johnson    County,    6 

Wall.  166  267 

Eippey  v.  Texas,  193  U.  S.  504  317 
Eitchie  v.  Mullen,  159  U.  S. 

235  281 

Eoanoke,  The,  189  U.  S.  185 

208,  266 
Eo  Bards  v.  Lamb,  127  U.  S. 

58  274 

Eobb   v.   Connolly,   111   U.   S. 

624  195,  271 

Eobbins  v.  Shelby  County,  120 
U.  S.  489 

55,  69,  92,  93,  302 
Eoberts  v.  Eeilly,  116  U.  S.  80  195 
v.  U.  S.,  176  U.  S.  221       229 
Eobertson  v.  Baldwin,  165  U. 

S.  275  218,  310 

v.  Cease,  97  U.  S.  646        215 
Eobinson      v.      Campbell,      3 

Wheat.  212  243 

Eoby  v.   Colehour,   146  U.   S. 

153  224 

Eogers  v.  Alabama,  192  U.  S. 

226  295,  313,  319 

v.  Burlington,      3      Wall. 
654  25 


Eoller  v.  Holly,  176  U.  S.  398  273 
Eose  v.  Himely,  4  Cr.  241  228,  284 
Eosen  v.  U.  S.,  161  U.  S.  29  254 
Eosenblatt  v.  Johnston,  104 

U.  S.  462  48 

Eoss,  In  re,  140  U.  S.  453  19,  246 
Eothschild  v.  Knight,  184  U. 

S.  334  224 

EoyaU  v.  Virginia,  116  U.  S. 

572,  121  id.  102  169 

Ex  parte,  117  U.  S.  241 

18,  225 

E.  E.  v.  C.  V.  E.,  159  U.  S.  630  224 
Euggles  v.  Illinois,  108  U.  S. 

526  176,  177 

Bundle  v.  D.  &  E.  C.  Co.,  14 

How.  80  71 

Eunyan  v.  Coster,  14  Pet.  122 

304,  305 
E.  W.  Parsons,  The,  191  U.  S. 

17  208,  209 

Ey.    Co.    v.   Philadelphia,    101 

U.  S.  528  53,  166 

v.  Whitton,  13  Wall.  270 

208,  210,  215,  243,  266,  303 
Eyder  v.  Holt,  128  U.  S.  525  63 
E.  &  A.  E.  v.  P.  T.  Co.,  169 

U.  S.  311  99 

E.  &  G.  E.  v.  Eeid,  13  Wall. 

269  52,  162,  163 

E.  &  P.  E.  v.  L.  E.,  13  How. 

81  175 

Salt  Co.  v.  East  Saginaw,  13 

Wall.    373  164 

Salt  Lake  City  v.  Tucker,  166 

U.  S.  707  256 

Sands  v.  M.  E.  I.  Co.,  123  U. 

S.  288  23,  84,     87 

Santa  Clara   County  v.   S.   P. 

E.,  118  U.  S.  394  304,  314 
Satterlee  v.  Matthewson,  2 

Pet.   380  182,  183 

Savings  Society  v.  Multnomah 

County,  169  U.  S.  421 

22,  40,  41,     42 
Sawyer   v.    Piper,    189   U.    S. 

154  206 

Sayward  v.  Denny,  158  U.  S. 

180  215,  224 

Schaefer  v.  Werling,  188  U.  S. 

516  316 

Schick  v.  U.  S.,  195  TJ.  S.  65 

235,  246,  254 
Schillinger  v.  U.  S.,  155  U.  S. 

163  209 

Scholey  v.  Eew,  23  Wall.  331     31 
Schollenberger      v.      Pennsyl- 
vania, 171  U.  S.  1    96,  315 


TABLE   OF    CASES    CITED. 
The  references  are  to  the  pages. 


XXXV 


Schurz  v.  Cook. 

See  People  v.  Cook. 
S.  Co.  v.  Chase,  16  Wall.  522  208 
v.  Joliffe,  2  Wall.  450          76 
v.  Portwardens,    6    Wall. 

31  44,  57,  74,  106 

Scotland   County  Court  v.   U. 

S.,  140  U.  S.  41      153,  155 
Scott  v.  Donald,  165  U.  S.  58 

91,     96 

v.  Jones,  5  How.  343  138 

v.  McNeal,   154  U.   S.  34  274 
v.  Neely,   140   U.   S.   106 

210,  243 
v.  Sandford,  19  How.  393 

8,  215,  231,  291,  292 
Scranton  v.  Wheeler,  179  U.  S. 

141  253 

S.  C.  S.  By.  v.  Sioux  City,  138 

U.  S.  98  53,  165,  174 

Scudder  v.  Comptroller,  175  U. 

S.  32  224 

S.  D.  L.  &  T.  Co.  v.  Jasper, 

189  U.  S.  439       lOlb,  278 
v.  National  City,   174  U. 

S.  739  lOlb,  278 

Searight  v.  Stokes,  3  How.  151     97 
Seeberger  v.  McCormick,   175 

U.  S.  274  224 

Seibert   v.   Lewis,    122   U.    S. 

284  155 

Seneca  Nation  v.  Christy,  162 

U.  S.  283  224 

Sentell  v.  N.  O.  &  C.  E.,  166 

U.  S.  698  280 

S.  F.  et  A.  des  E.  U.  v.  Milli- 

ken,  135  U.  S.  304        305 
Shaw  v.  Covington,  194  U.  S. 

593  175 

v.  Bobbins,  12  Wheat.  369 

151,  153 

Shelby  County  v.  Union  & 
Planters'  Bank,  161 
U.  S.  149 

53,  141,  162,  167,  174 
Sherlock  v.  Ailing,  93   U.   S. 

99  208 

Shibuya    Jugiro,    In    re,    140 

U.  S.  291  313 

Shields  v.  Ohio,  95  U.  S.  319 

52,  150,  165,  174,  175,  178 
Shively  v.  Bowlby,  152  U.  S.  1 

2    72    299 
rtwell  v.  Moore,  129  IT.  s! 

590  44 

Shreveport  v.  Cole,  129  U.  S. 

36  139 

river's    Lessee    v.    Lynn,    2 

How.  43  284 


Shumate  v.  Heman,  181  U.  S. 

402  316 

Siebold,  Ex  parte,  100  U.  S.  371  296 
Simmons   v.    Saul,    138   U.    S. 

439  283,  284 

Simon  v.  Craft,  182  U.  S.  427  273 
Sinnot  v.  Davenport,  22  How. 

227  77,  79,  101 

Slaughter  House  Cases,  16 
Wall.  36  290,  291,  298, 

300,  310,  311,  314 
Slocum  v.  Mayberry,  2  Wheat. 

1  217,  270,  272,  273 

S.  L.  &  T.  Co.  v.  Comptroller 
of  New  York,  177  U.  S. 
318  279 

Smith  v.  Alabama,  124  U.  S. 

465  235,  237 

v.  Condry,  1  How.  28  282 

v.  Indiana,  191  U.  S.  138  228 
v.  Maryland,  18  How.  71 

71,  72,  299 

v.  Mclver,  9  Wheat.  532  272 
v.  Beeves,  178  U.  S.  436  262 
v.  S.  L.  &  S.  W.  By.,  181 

U.  S.  248  81 

Smyth  v.  Ames,  169  U.  S.  466 
lOla,  lOlb,  129, 

263,  278,  304,  313,  314 
v.  Ames,  171  U.  S.  361 

lOlb,  315 
Snyder  v.  Bettman,  190  U.  S. 

249  39 

Society  for  Savings  v.  Coite,  6 

Wall.  594  45 

Sonnentheil  v.  M.  B.  Co.,  172 

U.  S.  401  206 

Soon  Hing  v.  Crowley,  113  U. 

S.  703  237,  321 

South  Carolina  v.  Georgia,  93 

U.  S.  4  73,  85,  211 

South  Dakota  v.  North  Caro- 
lina, 192  U.  S.  286 

211,  212,  261 
S.  P.  Co.  v.  Denton,  146  U.  S. 

202  307 

Spencer  v.  Merchant,   125  U. 

S.  345         24,  40,  277,  282 
Spies  v.  Illinois,  123  U.  S.  131 

224,  275,  298 
Spraigue  v.  Thompson,  118  U. 

S.  90  77,  233 

Springer  v.  U.  S.,  102  U.  S. 

586  31,  34,  250 

Springville  v.  Thomas,  166  U. 

S.  707  256 

Sprott  v.  U.  S.,  20  Wall.  459    191 
S.  By.  v.  Allison,  190  U.  S.  326 

215,  303,  305 


XXXVI 


TABLE    OF    CASES   CITED. 
The  references  are  to  the  pages. 


S.  S.  Co.  v.  Joliffe,  2  Wall.  450     76 
v.    Portwardens,    6    Wall. 

31  44,  57,  74,  106 

S.  S.  E.  Co.  v.  McClain,   192 

U.  S.  397  31 

Stacy  v.  Thrasher,  6  How.  44  288 
St.    A.    F.    W.    P.    Co.   v.    St. 

Paul    W.    Comrs.,    168 

U.  S.  349  2,     71 

Stanislaus  County  v.  S.  J.   & 

K.  E.  C.  &  I.  Co.,  192 

U.  S.  201 

lOlb,  175, 176,  178,  278,  315 
Stanley  v.  Schwalby,  162  U.  S. 

255  209 

v.  Supervisors,  121  U.  S. 

535  51 

State  v.  Parkhurst,  9  N.  J.  L. 

427  233 

State  Bank  v.  Knopp,  16  How. 

369  141 

State   Freight   Tax,    15    Wall. 

232  22,  58,  65,  105 

State     Tax     on     Foreign-held 

Bonds,  15  Wall.  300 

41,  42,  147 
State   Tax   on  Eailway   Gross 

Eeceipts,  15  Wall.  284 

57,  105 
State  Tonnage  Tax  Cases,  12 

Wall.  204  44,     74 

St.  Clair  v.  Cox,  106  U.  S.  350 

285,  286,  306 
St.  Clair  County  v.  I.  S.  &  C. 

T.  Co.,  192  U.  S.  454       82 
S.  T.  Co.  v.  B.  E.  Nat.  Bank, 

187  U.  S.  211          210,  242 
Steamship    Co.    v.    Joliffe,    2 

Wall.  450  76 

Steamship  Co.  v.  Portwardens, 

6  Wall.  31    44,  57,  74,  106 
Stearns  v.  Minnesota,  179  U. 

S.  S.  223 

52,   53,   141,   162,   164,  165 
Stein  v.  B.  W.  S.  Co.,  141  U. 

S.  67  175 

Stephens  v.  Cherokee  Nation, 

174  U.  S.  445  184 

Stevens  v.  Griffith,  111  U.  S. 

48  139 

v.  Nichols,  130  U.  S.  230  215 
St.   J.   &   G.   I.  E.   v.   Steele, 

167  U.  S.  659  210,  215,  303 
St.  Lawrence,  The,  1  Bl.  522 

207,  209 
St.   L.    C.    C.    Co.    v.    Illinois, 

185  U.  S.  203         280,  321 
St.  L.,  I.  M.  &  St.  P.  Ey.  v. 

Paul,  173  U.  S.  404       319 


St.    Louis    v.    W.    F.    Co.,    11 

Wall.   423     41,  57,  82,  106 
v.  W.   U.  T.  Co.,  148   U. 

S.  92  24,  134 

St.  L.  &  S.  F.  Ey.  v.  Gill,  156 
U.  S.  649 

53,  lOla,  174, 

175,  178,  278,  315 
v.  James,   161   U.    S.   545 

192,  210,  215,  303,  305 
v.  Mathews,  165  U.   S.   1 

176,  177,  278,  318 
Stockard  v.  Morgan,  185  U.  S. 

27  55,     92 

Stockdale  v.  I.  Cos.,  20  Wall. 

323  184 

Stone  v.  F.  L.  &  T.  Co.,  116 

U.  S.  307  98,  lOla,  176,  177 
v.  I.  C.  E.,  116  U.  S.  347 

98,  177 
v.  Mississippi,   101   U.   S. 

814  178 

v.  N.  O.  &  N.  E.  E.,  116 

U.  S.  352  98 

Storti    v.    Massachusetts,    183 

U.  S.  138  215,  225 

St.  P.  G.  L.  Co.  v.  St.  Paul, 

181  U.  S.  142,  139,  141 
St.  P.,  M.  &  M.  Ey.  v.  Todd 

County,  142  U.  S.  282  140 
Strader  v.  Graham,  10  How. 

93  292 

Strauder     v.     West    Virginia, 

100  U.  S.  303  295,  313 

Streitwolf    v.    Streitwolf,    181 

U.  S.  179  286 

Strother  v.  Lucas,  6  Pet.  763  229 
Stuart  v.  Laird,  1  Cr.  299  234 
Sturges  v.  Crowninshield,  4 

Wheat.  122 

2,  4,  63,  138,  142, 

147,  150,  152,  159,  217,  235 
St.  T.  W.  W.  v.  N.  O.  W.  W., 

120  U.  S.  64  169 

Sully  v.  American  Nat.  Bank, 

178  U.  S.  289  303,  304,  319 
Supervisors  v.  Durant,  9  Wall. 

415  267 

v.  Stanley,  105  U.  S.  305 

50,     51 

v.  U.  S.,  154  U.  S.  576       267 
Suydam  v.  Broadnax,  14  Pet. 

67  147,  151,  271 

S.  V.  W.  W.  v.  Schottler,  110 

U.  S.  347  177 

Swafford    v.    Templeton,    185 

U.  S.  487  206,  293,  294 
Swan,  In  re,  150  U.  S.  637  250 
Swift  v.  Tyson,  16  Pet.  1  242,  243 


TABLE    OF    CASES    CITED. 

The  references  are  to  the  pages. 


XXXV11 


S.  W.  W.  Co.  v.  Skaneateles, 

184  U.  S.  354  169 

Talbot    v.    S.    C.    First    Nat. 

Bank,  185  U.  S.  172       206 
v.  Seeman,  1  Cr.  1  229 

Talton   v.   Mayes,    163    U.    S. 

376  247 

Tappan    v.    Merchants'    Nat. 

Bank,  19  Wall.  490  51 

Tarble's  Case,  13  Wall.  397       271 
Tarrance  v.  Florida,  188  U.  S. 

519  313,  319 

Taylor    v.    Carryl,    20    How. 

583  272 

v.  Ypsilanti,  105  U.  S.  60     25 
Taylor  and  Marshall  v.  Beck- 
ham,  178  U.  S.  548  280,  327 
T.  Co.  v.  Parkersburg,  107  U. 

S.  691  23,     87 

v.  Wheeling,  99  U.  S.  273 

54,  66,  82,  106 

Teal  v.  Felton,  12  How.  284     268 
Tel.   Co.   v.  Texas,   105  U.   S. 

460  64 

Tennessee  v.  Davis,  100  U.  S. 

257  205,  216,  225 

v.  P.  S.  C.  Co.,  117  U.  S. 

51  58,  105 

v.  Sneed,  96  U.  S.  69  145 
v.  Union  &  Planters' 

Bank,  152  U.  S.  454       215 
v.  Virginia,  177  U.  S.  501  211 
Terlinden  v.  Ames,  184  U.  S. 

270  228 

Terrett  v.  Taylor,  9  Cr.  43         161 
Terry  v.  Anderson,   95   U.   S. 

628  143 

Ex  parte,  128  U.   S.   289 

250,  254 
Texas  v.  White,    7  Wall.   700 

2,  213,  229,  327 
The  Albany  Bridge  Case. 

See  Albany  Bridge  Case. 
The  Belfast. 

See  Belfast,  The. 
The  China. 

See  China,  The. 

Thomas  v.  Gay,  169  U.  S.  264  238 
v.  U.  S.,  192  U.  S.  363         31 
Thomson  v.  P.  R,  9  Wall.  579     47 
Thompson  v.  Missouri,  171  U. 

S.  380  187 

v.  U.  S.,  155  U.  S.  271  252 
v.  Utah,  170  U.  S.  343  10,  185 
v.  Whitman,  18  Wall.  457 

284,  287 
Thorington     v.     Montgomery, 

147  U.  S.  490          247,  298 


Thormann  v.  Frame,  176  U.  S. 

350  284 

T.   I.   Co.  v.  Connecticut,   185 

U.  S.  364  300 

Tiernan  v.  Rinker,   102  U.  S. 

123  55,  303 

Timmons  v.  E.  L.  Co.,  139  U. 

S.  378  215 

Tinsley  v.  Anderson,  171  U.  S. 

101  225,  274,  322 

Tomlinson  v.  Branch,  15  Wall. 

460  53,  168 

v.  Jessup,  15  Wall.  454      165 
Tonawanda  v.  Lyon,  181  U.  S. 

389  24,  273 

Town  of  Venice   v.   Murdock, 

92  U.  S.  494  242 

Townsend  v.   Todd,   91   U.   S. 

452  241 

Trade  Mark  Cases,  100  U.  S. 

82  63,  233 

Transportation  Co.  v.  Parkers- 

burg,  107  U.  S.  691  23,     87 
v.  Wheeling,  99  U.  S.  273 

54,  66,  82,  106 
Trask  v.  Maguire,  18  Wall.  391 

52,  150,  164 
Trevett  v.  Weeden,  2  Arnold, 

525  233 


Trigg  v.  Drew,  10  How.  224     169 
Tucker  v. 

527  46,  53,  166,  174 


Ferguson,  22  Wall. 


Tulare   Irr.   Dist.  v.   Shepard, 

185  U.  S.  1  148 

Tullis  v.  L.  E.  &  W.  E.,  175 

U.  S.  348  315 

Tullock  v.  Mulvane,  184  U.  S. 

497  206 

Turnbull  v.  Payson,  95  U.  S. 

418  289 

Turner  v.  Maryland,  107  U.  S. 

38  44,  89 

v.  New  York,   168   U.    S. 

90  279 

v.  Wilkes  County  Comrs., 

173  U.  S.  461  140,  243,  282 
v.  Williams. 
See  U.  S.  v.  Williams. 
Turnpike  Co.  v.  State,  3  Wall. 

210  175 

Turpin  v.  Burgess,  117  U.  S. 

504  29,     73 

v.  Lemon,    187    U.    S.    51 

228,  277 
Twin   City   Bank   v.   Nebeker, 

167  U.  S.  196  23,     40 

Twitchell     v.     The     Common- 
wealth, 7  Wall.  321 

224,  254 


XXXV111 


TABLE   OF    CASES   CITED. 
The  references  are  to  the  pages. 


Tyler  v.  Judges  of  Court  of 
Eegistration,  179  U.  S. 
404  228 

In  re,  149  U.  S.  164  272 

T.  &  P.  By.  v.  Cody,  166  U.  S. 

606  206 

v.  Cox,  145  id.  593  243 

v.  I.  C.  C.,  162  U.  S.  197 

109,  112 

University   v.    People,    99    U. 

S.   309       52,  140,  162,  163 
U.  P.  E.  v.  Peniston,  18  Wall. 

5  47 

Upshur    County   v.   Eich,    135 

U.  S.  467  228 

U.  E.  v.   City  of  New  York, 

193  U.  S.  416  148 

U.  E.   T.  Co.  v.  Lynch,  177 

U.  S.  149     40,  54,  57,  103 
Urtetiqui  v.  D'Arbel,   9   Pet. 

692  288 

U.    S.   v.   Amedy,    11   Wheat. 

392  282 

v.  Arredondo,  6  Pet.  691  239 
v.  Ball,  163  U.  S.  662  251,  252 
v.  B.  B.  B.  Co.,  176  U.  S. 

211  83,     84 

v.  Bevans,  3  Wheat.  336 

73,  216 

v.  Black,  128  U.  S.  40  229 
v.  Blaine,  139  U.  S.  306  229 
v.  Burr,  4  Cr.  470  235 

v.  B.  &  O.  E.,   17  Wall. 

322  39 

v.  Coolidge,  1  Wheat.  415 

216,  239 
v.  Cruikshank,    92    U.    S. 

542  217,  291,  294,  309 

v.  De  Walt,  128  U.  S.  393  247 
v.  Dewitt,  9  Wall.  41  70,  216 
v.  E.  C.  Knight  Co.,  156 

U.   S.   1  67,  128,  131 

v.  Ferreira,  13  How.  40  223 
v.  Fisher,  2  Cr.  358  18 

v.  Forty-three  Gallons  of 
Whiskey,  93  U.  S.  188 

136,  238 

v.  Fox,  94  U.  S.  315  298 

v.  Fox,  95  U.  S.  670 

186,  216,  217 
v.  G.    E.   By.,   160   U.    S. 

668  19,  232 

v.  Haas,  3  Wall.  407  135 

v.  Hall,  98  U.  S.  343  18 

v.  Hamilton,  3  Dall.  17  250 
v.  Harris,  106  U.  S.  629 

3,  232,  233,  310,  322 
v.  Holliday,  3  Wall.  407     135 


U.  S.  v.  Hudson,  7  Cr.  32 

216,  220,  239 

v.  Isham,  17  Wall.  506      132 
v.  J.  T.  A.,  171  U.  S.  505 
67,  122,  123, 
124,  125,  127,  129 
v.  Jung  Ah  Lung,  124  U. 

S.  621  297 

v.  Keehler,  9  Wall.  83  191 
v.  Le  Bris,  121  U.  S.  278  136 
v.  Lee,  106  U.  S.  196  264 
v.  Lee  Yen  Tai,  185  U.  S. 

213  238 

v.  Lynah,  188  U.  S.  445  253 
v.  Marigold,  9  How.  560 

18,  269 

Memphis,  97  U.  S.  284  179 
Michigan,    190    U.    S. 
379  209,  213 

M.   E.    Co.,   189   U.   S. 
391  72,  299 

New  Orleans,  98  U.  S. 
381  24 

North  Carolina,  136  U. 

S.  211  209 

v.  Ortega,  11  Wheat.  467 

206,  220 
v.  P.-D.  M.  Co.,  176  U.  S. 

317  266 

v.  Perez,  9  Wheat.  579  251 
v.  Perkins,  163  U.  S.  625 

42,     45 

v.  Perot,  98  U.  S.  428  230 
v.  Peters,  3  Dall.  121  221 
v.  Peters,  5  Cr.  115  263,  266 
.v.  Eeese,  92  U.  S.  214 

217,  293 

v.  Eeid,  12  How.  361  265 

v.  E.  G.  D.  &  I.  Co.,  174 

U.  S.  690  84 

v.  Eice,  4  Wheat.  246  26 

v.  Eickert,  188  U.  S.  432  46 
v.  Schooner  Peggy,  1  Cr. 

103  238 

v.  Schurz,  102  U.  S.  378  229 
v.  Singer,  15  Wall.  Ill  31 
v.  Sing  Tuck,  194  U.  S. 

161  225,  297 

v.  Texas,   143   U.    S.   621 

228,  265 
v.  T.  M.  F.  A.,  166  U.  S. 

290 

67,  112,  123,  125,  127,  129 
v.  U.    P.    E.,    91    U.    S. 

72  236 

v.  Waddell,  112  U.  S.  76 

19,  250 
v.  Williams,  1ST4  U.  S.  279 

251,  254,  309 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


XXXIX 


U.   S.  v.  Windom,   137  U.   S. 

636  229 

v.  Wong    Kim    Ark,    169 
U.  S.  649 

235,  291,  297,  298 
v.  Zucker,  161  U.  S.  475  254 

Van  Allen  v.  The  Assessors,  3 

Wall.  573  48,     49 

Van    Brocklin    v.    Tennessee, 

117  U.  S.  151  46 

Vance   v.    Vance.    108    U.    S. 

514  143 

v.  W.  A.  V.  Co.,  170  U.  S. 

438  90 

Van    Hoffman    v.    Quincy,    4 

Wall.  552  145 

Van    Home's   Lessee   v.   Dor- 
ranee,  2  Dall.  304  204 
Vaughan  v.  Northup,  15  Pet. 

1  267 

Veazie  Bank  -y.  Fenno,  8  Wall. 

533  17,  31,     40 

v.  Moor,  14  How.  568  78,     85 
Venice  v.  Murdock,  92  U.  S. 

494  242 

Vicksburg  v.  Tobin,  100  U.  S. 

430  23,     87 

Virginia  v.  Eives,   100   U.   S. 

313  295,  313 

v.  Tennessee,    148    U.    S. 

503  192,  211 

v.  West       Virginia,       11 

Wall.  39  191,  192,  211 

Virginia    Coupon    Cases,    114 

U.   S.   269 

169,  190,  233,  264 
Virginia,  Ex  parte,  100  U.  S. 

339  295,  313 

Voight  v.  Wright,   141   U.   S. 

62  90,     91 

Voigt   v.    Detroit,    184   U.    S. 

115  24,  277 

Voorhees  v.  Bank  of  the  U.  S., 

10  Pet.  449  284 

V.  W.  Co.  v.  Vicksburg,  185 

U.  S.  65  206 

radsworth  v.  Supervisors,  102 

U.  S.  534  148,  149 

ragonner  v.  Flack,  188  U.  S. 

595  141,  142 

faite  v.  Dowley,  94  U.  S.  527  52 
v.  Santa  Cruz,  184  U.  S. 

302  148 

/"ales  v.  Stetson,  2  Mass.  146  165 
v.  Whitney,  114  U.  S.  564  244 
ralker  v.  Sauvinet,  92  U.  S. 

90  255,  274 


Walker  v.  Whitehead,  16  Wall. 

314  146 

Wall,  Ex  parte,  107  U.  S.  265  247 
Walla  Walla  v.  W.  W.  W.  Co., 

172  U.  S.  1  139,  169 

Wallace  v.  McConnell,  13  Pet. 

136  271,  272 

Walling  v.  Michigan,  116  U.  S. 

446  55,  91,  302 

Walsh  v.  C.,  H.  V.  &  A.  E.,  176 

U.  S.  469  141 

Walston  v.  Nevin,   128  U.  S. 

578  277,  316 

Ward  v.  Maryland,   12   Wall. 

418  55,  90,  302 

Waring  v.  Clarke,  5  How.  441 

209,  217 
v.  The    Mayor,    8    Wall. 

110  88 

Warner  v.   S.   &  H.   Co.,   191 

U.  S.  195  63 

Watson    v.    Jones,    13    Wall. 

679  266 

v.  Mercer,  8  Pet.  88    182,  183 
Watts  and  Sachs,  In  re,  190 

U.  S.  1  266 

Wayman      v.      Southard,      10 

Wheat.  1  265 

W.  B.  Co.  v.  Hatch,  125  U.  S. 

1  84 

Webber  v.  Virginia,  103  U.  S. 

344  47,  55,  90,  302 

Weber  v.   Harbor   Comrs.,   18 

Wall.  57  71,  72,  299 

v.  Eogan,  188  U.  S.  10        148 
Webster   v.   Cooper,   14   How. 

488  241 

v.  Eeid,  11  How.  437          285 
Wedding  v.  Meyler,  192  U.  S. 

573  285 

Welch  v.  Cook,  97  U.  S.  541     164 
Wells  v.  Savannah,  181  U.  S. 

531  52,  53,  166 

Wells,  Ex  parte,  18  How.  307  250 
Welton  v.  Missouri,  91  U.  S. 

275  55,  69,  90,  302 

Werlein  v.  New  Orleans,   177 

U.  S.  390  289 

West  v.  Aurora  City,  6  Wall. 

139  225 

v.  Louisiana,    194    U.    S. 

258  275 

Weston  v.   Charleston,   2  Pet. 

449  44 

Weyerhaueser     v.     Minnesota, 

176  U.  S.  550  277 

W.  F.  Co.  v.  East  St.  Louis, 

107  U.  S.  365 

53,  54,  66,  82,  106,  166 


xl 


TABLE    OF    CASES    CITED. 


The  references  are  to  the  pages. 


Wharton   v.   Wise,    153   U.    S. 

155  192 

Wheaton  v.  Peters,  8  Pet.  591 

239,  243 
Wheeler  v.  Jackson,  137  U.  S. 

245  143,  279 

Whitbeck  v.  Mercantile  Bank, 

127  U.  S.  193  51 

White   v.    Hart,   13   Wall   646 

2,  138,  146,  310 
v.  Schloerb,  178  U.  S.  542  272 
Whitehead    v.    Shattuek,    138 

U.  S.  146  255 

Whitman      v.      Oxford      Nat. 

Bank,  176  U.  S.  559       288 
Whitney  v.  Eobertson,  124  U. 

S.  190  238 

Whitten  v.  Tomlinson,  160  U. 

S.  231  195,  225 

Wickliffe  v.  Owings,  17  How. 

47  215 

Wight  v.  Davidson,  181  U.  S. 

371  251 

v.  U.  S.,  167  U.  S.  512       111 
Wilcox  v.  Jackson,  13  Pet.  498 

264,  284 
Wiley  v.  Sinkler,  179  U.  S.  58 

293,  294 
Wilkerson  v.  Utah,   99   U.   S. 

130  257 

Wilkes  County  v.  Coler,  180  U. 

S.  506  139,  140,  282 

Wilkes  County  Comrs.  v.  Coler, 

190  U.  S.  107  25 

Williams  v.  Benedict,  8  How. 

107  267,  272 

v.  Bruffy,    96    U.    S.    176 

139,  191 
v.  Fears,    179    U.    S.    270 

56,  320 
v.  Heard,   140  U.   S.   529 

224,  268 
v.  Louisiana,    103    U.    S. 

637  141 

v.  Mississippi,   170   U.   S. 

213  313,  319 

v.  Parker,  188  U.  S.  491     278 
v.  Wingo,  177  U.  S.  601 

168,  175 
Williamson  v.  Berry,  8  How. 

495  284 

v.  New  Jersey,  130  U.  S. 

189  170 

v.  Suydam,  6  Wall.  723       143 
Willson  v.  The  B.  B.  C.  M.  Co., 

2  Pet.  245  84 

Wilson  v.  Eureka  City,  173  U. 

S.  32  280,  322 

v.  Iseminger,  185  U.  S.  55  143 


Wilson  v.  Lambert,  168  U.  S. 

611  251 

v.  McNamee,    102    U.    S. 

572  76 

v.  North  Carolina,  169  U. 

S.  586  280 

v.  Standefer,    184    U.    S. 

399  141 

Ex  parte,  114  U.  S.  417     247 
Wiscart  v.    Dauchy,    3    Dall. 

321  223 

Wisconsin  v.  Duluth,  96  U.  S. 

379  85,  211 

v.  P.  I.  Co.,  127  U.  S.  265 

212,  213,  288 

Wise  v.  Withers,  3  Cr.  331         244 
Wiswall  v.  Sampson,  14  How. 

52  267,  272 

Withers  v.  Buckley,  20  How. 

84  85,  247 

Witherspoon     v.     Duncan,     4 

Wall.  210  40 

W.,  M.  &  P.  E.  v.  Jacobson, 

179  U.  S.  287  100 

Wolff  v.  New  Orleans,  103  U. 

S.  358  148,  153,  155 

Wong  Wing  v.  U.  S.,  163  U.  S. 

228,  238,  251,  254,  297 

Wood  v.  Brady,  150  U.  S.  18     140 
Woodruff   v.   Mississippi,    162 

U.  S.  291  141,  148 

v.  Parham,    8    Wall.    123 
28,  29,  54,  64,  73, 

88,  90,  94,  104,  106 
v.  Trapnall,  10  How.  190  169 
Worcester   v.   Georgia,   6   Pet. 

515  135,  224 

Workman   v.    New   York,    179 

U.  S.  552  206,  209 

W.  P.  O.  Co.  v.  Texas,  177  U. 

S.  28  304 

W.  P.  S.  C.  v.  Casperson,  193 

U.  S.  189  298 

W.  E.  v.  Defiance,  167  U.  S. 

88  176,  177,  280 

Wright  v.  M.  M.  L.  I.  Co.,  193 

U.  S.  657  165 

Wright   v.    Nagle,    101    U.    S. 

791  141,  175 

W.,  S.  L.  &  P.  Ey.  v.  Illinois, 

118  U.  S.  557  101,  113 

Wurts  v.  Hoagland,  114  U.  S. 

606  277 

W.  U.  T.  Co.  v.  A.  A.  E.,  178 

U.  S.  239        206,  215 
v.  Alabama,  132  U.  S.  472 

56,  135 

v.  C.  P.  Co.,  181  U.  S. 
92         210,  239,  243 


TABLE    OF    CASES    CITED. 
The  references  are  to  the  pages. 


xli 


W.  U.  T.  Co.  v.  Indiana,  165 

U.  S.  304  35,     40 

v.  James,   162   U.   S.   650 

64,  134 
v.  Massachusetts,    125    U. 

S.  530  40,  57,  135 

v.  Missouri,  190  U.  S.  412 

40,  57,  103,  134 
v.  New   Hope,   187   U.   S. 

419  24,  134 

v.  Pendleton,    122    U.    S. 

347  134 

v.  Taggart,  163  U.  S.  1 

22,  40,  54,  57,  134 
v.  Texas,  105  U.  S.  460 

44,  58,  134 
Wynehamer  v.  The  People,  13 

N.  Y.  428  10 

W.  &  B.  Bridge  Co.  v.  W.  B. 

Co.,  138  U.  S.  287  175,  176 
W.  &  M.  Ey.  v.  Powers,  191 

U.  S.  379  164 

W.  &  St.  P.  L.  Co.  v.  Minne- 
sota, 159  U.  S.  526 

53,  166,  167,  277 


W.  &  St.  P.  E.  v.  Blake,  94  U. 

S.  180  176 

W.  &  W.  E.  v.  Alsbrook,  146 
U.  S.  279 

52,  53,  162,  166,  168,  174 
v.  King,  91  U.  S.  3  146 

v.  Eeid,  13  Wall.  264  52,  162 

Yarbrough,  Ex  parte,  110  U. 

S.   651 

18,  19,  250,  293,  296 
Yick  Wo  v.  Hopkins,  118  U.  S. 

356  311,  312 

York  v.  Texas,  137  U.  S.  15      273 
Young  v.  Clarendon  Township, 

132  U.  S.  340  25 

v.  Parker,      132      U.      S. 

267  225 

Y.  &  M.  V.  E.  v.  Thomas,  132 

U.  S.  174  53,  166 

Y.  &  M.  V.  Ey.  v.  Adams,  180 

U.  S.  1  224 

Zane  v.  Hamilton  County,  189 

U.  S.  370  148,  149 


1TY 

*&S 

CHAPTER  I. 

THE  EELATION  OF  THE  STATES  AND  OF  THE  TEEEITOEIES 
TO  THE  UNITED  STATES  AND  TO  EACH  OTHEE. 

1.  The  sanction  of  the  Constitution. 

2.  The  indissolubility  of  the  Union. 

3.  The  autonomy  of  the  states. 

4.  The  delegated  character  and  limited  powers  of  the  government  of  the 

United  States. 

5.  The  federal  supremacy. 

6.  The  restraints  upon  the  states. 

7.  The  force  and  effect  of  the  preamble  to  the  Constitution. 

8.  The  territories. 

The  sanction  of  the  Constitution. 

1.  The  Constitution,  though  framed  by  a  convention 
whose  members  were  elected  by  the  legislatures  of  the 
states,  was  ratified  in  the  several  states  by  conventions 
whose  members  were  elected  by  the  people  of  their 
respective  states.    It  derives  its  whole  authority  from 
that  ratification,  and  when  thus  adopted,  it  was  of  com- 
plete obligation  and  it  thenceforth  bound  the  states,  and 
the  citizens  of  each  state.1 

The  indissolubility  of  the  Union. 

2.  The  union  of  the  states  under  the  Constitution  was, 
from  and  after  the  ratification  of  that  instrument,  indis- 
soluble, and,  until  an  amendment  be  adopted,  authoriz- 
ing a  dissolution  of  the  union,  or  a  withdrawal  of  a  state 
from  the  union,  it  is  not  possible  for  a  state,  without 
violating  the  constitutional  compact,  to  withdraw  from 
the  union,  or  to  deprive  itself  of  its  rights  as  one  of  the 

1  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  324;  McCulloch  v.  Maryland, 
Wheat.  316,  404.     See  also  Downes  v.  Bidwell,  182  U.  S.  251,  285,  359, 


Z  RELATION  BETWEEN  THE  GOVERNMENTS. 

United  States,  or  to  emancipate  itself  from  the  restraints 
imposed  by  the  Constitution  on  freedom  of  state  action.2 

The  autonomy  of  the  states. 

3.  The  thirteen  original  states  were  existing  govern- 
ments when  the  Constitution  was  ratified;  and  states 
admitted  to  the  union  under  the  Constitution  have  as 
regards  the  United  States  and  the  other  states,  in  all 
respects  in  which  the  effect  of  that  instrument  has  not 
been  changed  by  amendment,  the  same  rights,  powers 
and  obligations  as  the  thirteen  original  states.3     There- 
fore,  in   so   far   as   the   states   are   not   controlled   by 
the  expressed  or  implied  restrictions  contained  in  the 
Constitution  of  the  United  States,  they  may  severally 
exercise   all  the  powers   of  independent  governments.4 
The  states,  though  united  under  the  sovereign  authority 
of  the  Constitution,  are,  so  far  as  their  freedom  of  action 
is  not  controlled  by  that  instrument,  foreign  to  and  inde- 
pendent of  each  other.5 

The   delegated   character  and  limited  powers   of  the 
federal  government. 

4.  The  government  of  the  United  States,  in  its  relation 
to  the  several  states  and  to  the  citizens  of  those  states, 
is    one    of   delegated   and   limited   powers,    which    are 
expressly  or  by  necessary  implication  granted  by  its 

2  Texas  v.  White,  7  Wall.  700;  White  v.  Hart,  13  Wall.  646;  Keith  v. 
Clark,  97  U.  S.  454. 

3  Pollard  v.  Hagan,  3  How.  212 ;  Texas  v.  White,  7  Wall.  700 ;  Shively  v. 
Bowlby,  152  U.  S.  1;  St.  A.  F.  W.  P.  Co.  v.  St.  Paul  W.  Comrs.,  168  id. 
349;  Bolln  v.  Nebraska,  176  id.  83;  M.  T.  Co.  v.  Mobile,  187  id.  479. 

4  Amendments  to  the  Constitution,  Articles  IX  and  X ;  Martin  v.  Hunter 's 
Lessee,  1  Wheat.  304,  325 ;  Sturges  v.  Crowninshield,  4  Wheat.  193 ;  Texas  v. 
White,  7  Wall.  700,  721. 

6Buckner  v.  Finley,  2  Pet.  586,  590;  Ehode  Island  v.  Massachusetts,  12 
Pet.  722. 


THE   FEDERAL  SUPREMACY.  3 

written  Constitution.6  The  Constitution  has  created  a 
government,  divided  into  three  departments,  legislative, 
executive  and  judicial.  As  the  chief  function  of  the 
executive  department,  apart  from  its  participation  in 
legislation  by  the  exercise  of  a  qualified  veto,  is  that  of 
administering  the  laws  of  Congress,  and  as  the  primary 
duty  of  the  judicial  department  is  that  of  expounding 
the  Constitution  and  the  laws  in  their  application  to 
subject-matters  of  judicial  cognizance,  either  civil  or 
criminal,  it  is  obvious  that  the  powers  conferred  by  the 
Constitution  upon  the  government  of  the  United  States 
are,  in  the  main,  powers  of  legislation.  The  powers 
granted  by  the  Constitution  to  the  government  of  the 
United  States  are  either  expressed  or  implied.  The 
expressed  powers  are  those  which  are  specifically  stated 
in  the  Constitution.  The  implied  powers  are  those  which 
authorize  the  use  of  appropriate  means,  which  are  con- 
sistent with  the  letter  and  spirit  of  the  Constitution,  for 
the  accomplishment  of  legitimate  ends,  which  are  not 
prohibited,  and  which  are  within  the  scope  of  the  Con- 
stitution.7 The  powers  granted  by  the  Constitution  to 
the  United  States  are  subject  to  certain  expressed  excep- 
tions, which  are,  in  the  main,  contained  in  the  9th  section 
of  Article  I  of  the  Constitution  and  in  the  first  eleven  of 
its  amendments. 

The  federal  supremacy.  / 

5.  Article  VI  of  the  Constitution  declares  that  "this 
Constitution  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 

6 Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  326;  Marbury  v.  Madison,  1 
Cr.  137,  176;  Briscoe  v.  Bank  of  Kentucky,  11  Pet.  317;  U.  S.  v.  Harris, 
106  U.  S.  629;  Langford  v.  U.  S.,  101  id.  341. 

7  Infra,  Chapter  II;  Constitution,  Article  I,  Section  8;  McCulloch  v. 
Maryland,  4  Wheat.  421. 


RELATION  BETWEEN   THE  GOVERNMENTS. 

States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  state  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding. "  By  force  of  this  constitutional  pro- 
vision, the  government  of  the  United  States,  as  Marshall, 
C.  J.,  said  in  McCulloch  v.  Maryland,8  "though  limited 
in  its  powers,  is  supreme  within  its  sphere  of  action/' 
and  to  the  extent,  and  in  the  exercise,  of  the  powers  dele- 
gated to  it,  it  is  a  sovereignty.9 

The  restraints  upon  the  states. 

6.  The  restraints  imposed  by  the  Constitution  upon 
the  states  are  either  expressed  or  implied.  The  ex- 
pressed restraints  are  those  which  are  specifically  stated 
in  the  Constitution.  The  implied  restraints  are  those 
which  result  from  the  express  grant  by  the  Constitution 
of  certain  powers  whose  nature,  or  the  terms  of  whose 
grant,  require  that  they  should  be  exclusively  exercised 
by  the  United  States.10  The  expressed  restraints  are, 
first,  those  which  affect  the  relations  of  the  several  states 
to  other  states,  foreign  and  domestic;  and,  second,  those 
which  have  reference  to  the  relations  between  the  states 
and  their  citizens,  and  which  limit  the  exercise  by  the 
states  of  their  powers  of  legislation.  The  expressed 
restraints  of  the  first  class  include  the  prohibition  of 
treaties,  alliances,  confederations,  agreements,  or  com- 
pacts with  another  state  or  with  a  foreign  power;  the 
obligation  not  to  issue  letters  of  marque  and  reprisal,  or 
to  maintain  troops  or  ships  of  war  in  times  of  peace,  or 

8  Wheat.  316,  405. 

•Alexander  Hamilton's  argument  of  23d  Fedruary,  1791,  as  to  the  con- 
stitutionality of  a  national  bank.  3  Lodge's  Hamilton's  Works,  181; 
Juilliard  v.  Greenman,  110  U.  S.  421;  Logan  v.  TJ.  S.,  144  id.  263;  In  re 
Debs,  158  id.  564;  Downes  v.  Bidwell,  182  id.  288. 

10  Sturges  v.  Crowninshield,  4  Wheat.  122,  193;  Houston  v.  Moore,  5  id.  49; 
Oilman  v.  Philadelphia,  3  Wall.  713. 


THE  KESTKAINTS  UPON   THE  STATES.  0 

to  engage  in  war  unless  actually  invaded  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay;  the  requirements 
that  full  faith  and  credit  shall  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  state,  and  that  fhe  citizens  of  each  state  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens 
of  the  several  states,  and  that  "fugitives  from  justice  shall 
be  surrendered  from  one  state  to  another.  The  expressed 
restraints  of  the  second  class  include  the  prohibition  of 
the  grant  of  titles  of  nobility,  of  the  coinage  of  money, 
of  the  emission  of  bills  of  credit,  of  the  establishment 
of  any  legal  tender  other  than  gold  and  silver  coin,  of 
the  imposition  of  duties  of  tonnage  and  duties  on  imports 
or  exports,  excepting  such  as  may  be  absolutely  neces- 
sary for  the  execution  of  inspection  laws ;  of  the  rehabili- 
tation of  slavery  or  involuntary  servitude,  except  as  a 
punishment  for  crime;  of  the  deprivation  of  any  person 
of  life,  liberty,  or  property  without  due  process  of  law; 
of  the  denial  to  any  person  of  the  equal  protection  of 
the  law;  of  disfranchisement  on  account  of  race,  colour, 
or  previous  condition  of  servitude,  or  for  any  cause,  except 
for  participation  in  rebellion  or  other  crime,  of  any  of 
the  male  inhabitants  of  a  state  who  are  twenty-one  years 
of  age  and  citizens  of  the  United  States ;  of  the  election  or 
the  appointment  to  office  under  a  state  of  any  person 
"who,  having  previously  taken  an  oath,  as  a  member  of 
Congress,  or  as  a  member  of  any  state  legislature,  or  as 
an  executive  or  judicial  officer  of  any  state,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof,"  and  whose  dis- 
abilities shall  not  have  been  removed  by  a  vote  of  two- 
thirds  of  each  house  of  Congress;  of  the  assumption  or 
payment  of  any  debt  or  obligation  incurred  in  aid  of  in- 
surrection or  rebellion  against  the  United  States,  or  of 


6  KELATION  BETWEEN   THE  GOVEKNMENTS. 

any  claim  for  the  loss  or  emancipation  of  any  slave;  and 
of  the  enactment  of  bills  of  attainder,  ex  post  facto  laws, 
or  laws  impairing  the  obligation  of  contracts. 

The  implied  restraints  limit  the  action  of  the  states 
with  regard  to  taxation,  the  regulation  of  commerce,  and 
the  personal  and  property  rights  of  their  citizens,  and  of 
the  citizens  of  other  states. 

Many  of  the  restraints  are  so  clear  in  their  terms,  and 
so  little  require  judicial  construction,  that  no  question 
has  ever  been  raised  as  to  their  legal  effect,  but  others 
of  those  restraints  have  been  frequently  subjects  of  liti- 
gation. For  the  purposes  of  this  treatise  it  is  unneces- 
sary to  make  further  reference  to  the  restraints  with 
regard  to  the  issue  of  letters  of  marque  or  reprisal,  the 
maintenance  of  troops  or  ships  of  war  in  time  of  peace, 
the  engagement  in  war  unless  actually  invaded  or  in 
such  imminent  danger  as  will  not  admit  of  delay,  the 
grant  of  titles  of  nobility,  or  the  coinage  of  money.  As, 
happily  for  the  peace  and  prosperity  of  the  country, 
slavery  is  of  past,  and  not  of  present,  interest,  it  is  not 
deemed  necessary  to  refer  to  that  subject  further  than 
to  note  that  the  XIII  Amendment  has  abolished  it  in 
every  form,  and  forbidden  its  re-establishment. 

The  force  and  effect  of  the  preamble  to  the  Constitution. 

7.  The  preamble  to  the  Constitution  declares  that 
"We,  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defense,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty 
to  ourselves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America." 
That  the  true  significance  of  that  declaration  may  be 
understood,  it  must  be  remembered  that  the  people, 
whose  ratification  of  the  instrument  gave  it  its  legal 


THE  TERRITORIES.  7 

validity,  were  citizens  of  independent  states,  which  had 
been  theretofore  bound  together  in  a  confederation,  and 
which  were  thenceforth  to  be  united  under  a  govern- 
ment which,  though  limited  in  its  action  by  the  reserva- 
tion to  the  several  states  of  all  powers  not  delegated  to 
the  United  States,  should  yet  be  supreme  within  its 
defined  bounds.11 

Therefore,  the  government  created  by  the  Constitution 
is,  to  the  extent  of  the  powers  vested  in  that  government, 
national  in  its  character,  and,  by  force  of  the  rights 
reserved  to  the  states,  it  is  also  a  league  of  sovereign 
and  independent  states;  and  every  citizen  of  each  state, 
while  owing  allegiance  to  his  state  in  all  matters  not 
controlled  by  the  powers  granted  to  the  United  States, 
owes  also  a  paramount  allegiance  to  the  United  States 
in  all  that  is  made  by  the  Constitution  of  federal  obliga- 
tion. In  view  of  this  dual,  and  yet  undivided,  allegiance 
due  by  those  who  are  citizens  of  the  United  States  and 
also  citizens  of  a  state,  it  was,  in  the  hour  of  its  forma- 
tion, and  it  has  ever  since  been,  essential  to  the  right 
administration  of  the  government  of  the  United  States 
under  the  Constitution  that  there  should  be  a  clear  ap- 
preciation of  the  complex  character  of  that  government 
and  a  careful  maintenance  of  the  balance  of  power  as 
between  the  government  of  the  United  States  and  the 
governments  of  the  several  states. 

The  territories. 

8.  The  Constitution 12  dealt  with  the  territory  owned  at 
the  time  of  its  adoption  and  with  future  acquisitions  of 
territory,  by  providing  that  "new  states  may  be  admitted 
by  the  Congress  into  the  Union, "  and  that13  "the  Con- 

11  Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  325. 

12  Art.  IV,  Sec.  3,  Par.  1. 
18  Art.  IV,  Sec.  3,  Par.  2. 


8  KELATION  BETWEEN  THE  GOVEKNMENTS. 

gress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States. "  In  Dred 
Scott  v.  Sandford14  the  court  held  that  the  power  of 
making  rules  and  regulations  was  intended  to  operate 
only  in  the  territory  belonging  to  the  United  States  in 
1787,  and  not  to  extend  to  subsequently  acquired  terri- 
tory; but  that  narrow  view  is  inconsistent  with  the  judg- 
ment in  the  earlier  case  of  A.  I.  Co.  v.  Canter 15  and  with 
the  doctrine  of  many  later  cases,  and  has  never  been 
recognized  in  the  administration  of  the  government. 
There  is  nothing  in  the  words  of  the  Constitution,  nor 
in  the  history  of  the  times,  to  show  that  the  framers  of 
the  Constitution  looked  upon  any  territory  of  the  United 
States,  excepting  the  future  seat  of  government,  in  any 
other  light  than  as  territory  to  be  organized  into  states 
so  soon  as  the  increase  of  population  should  render  that 
advisable.16  The  relation  between  the  United  States  and 
the  states  obviously  differs  from  the  relation  between  the 
United  States  and  the  territories,  in  that,  while  the 
reservation  to  the  states  of  the  right  of  local  self-govern- 
ment forbids  the  United  States  to  exercise  within  a  state 
any  power  of  local  government,  the  United  States  may,  as 
respects  any  territory,  under  the  express  power  of  making 
rules  and  regulations,  govern  and  administer  that  terri- 
tory. In  other  words,  Congress  holds  a  single  relation 
to  the  states,  but  it  holds  a  two-fold  relation  to  the  terri- 
tories. It  regulates  the  foreign  and  interstate  relations 
of  the  states  and  their  relations  with  the  territories.  It 
also  regulates  the  relations  of  the  territories  with  foreign 
countries,  with  the  states,  and  with  each  other,  and  in 
addition  to  that,  it  regulates  the  internal  affairs  of  each 

"19  How.  393. 

15 1  Pet.  511. 

"McAllister  v.  U.  S.,  141  U.  S.  174,  187. 


THE  TERKITOKIES.  9 

territory.  Congress  is,  therefore,  the  paramount  and  sole 
authority  for  every  territory.  As  such,  it  may  for  any 
territory,  as  it  has  by  an  unbroken  line  of  precedents 
from  the  adoption  of  the  Ordinance  of  the  Confederation 
for  the  government  of  the  Northwest  Territory  to  the 
Porto  Eico  Act  in  1900,  create  a  territorial  form  of  gov- 
ernment, and  limit  or  deny  the  exercise  of  merely  political 
rights,  such  as  the  right  of  suffrage;  17establish  courts, 
which  are  local  courts,  and  not  courts  of  the  United  States, 
and  whose  judges  hold  their  offices  for  such  terms  18  and 
under  such  conditions19  as  Congress  may  prescribe; 
impose  taxation ; 20  and,  generally,  exercise  all  powers 
of  government  in  matters  of  merely  local  concern.  But  it 
does  not  follow  from  this  that  Congress  may  exercise, 
even  within  a  territory,  arbitrary  or  despotic  power. 
Bradley,  J.,  said,21  "Doubtless  Congress,  in  legislating 
for  the  territories,  would  be  subject  to  those  fundamental 
limitations  in  favour  of  personal  rights  which  are  formu- 
lated in  the  Constitution  and  its  Amendments;  but  such 
limitations  would  exist  rather  by  inference  and  the  gen- 
eral spirit  of  the  Constitution  from  which  Congress 
derives  all  its  powers,  than  by  any  express  and  direct 
application  of  its  provisions. ' '  Similar  dicta  of  other 
eminent  jurists  could  be  quoted.22  The  objection  to  Mr. 
Justice  Bradley 's  view  is  that,  upon  every  principle  of 
construction,  the  power  in  the  Constitution  to  make  rules 

"Murphy  v.  Kamsey,  114  U.  S.  15. 

18  A.  I.  Co.  v.  Canter,  1  Pet.  511 ;  Benner  v.  Porter,  9  How.  235 ;  Clinton 
v.  Englebrecht,  13  Wall.  434;  Hornbuckle  v.  Toombs,  18  id.  648;  Good  v. 
Martin,  95  U.  S.  90;  Eeynolds  v.  U.  S.,  98  id.  145;  City  of  Panama,  101 
id.  453. 

"McAllister  v.  U.  S.,  141  U.  S.  174. 

20  Loughborough  v.  Blake,  5  Wheat.  317. 

21  Mormon  Church  v.  United  States,  136  U.  S.  44. 

22  Many  are  cited  in  the   able  paper   of  the  late  Eichard  C.  Dale  on 
"Implied  Limitations  upon  the  Exercise  of  the  Legislative  Power,"  24 
American  Bar  Association  Proceedings,  295. 


10  EELATION  BETWEEN   THE  GOVEKNMENTS. 

and  regulations  for  the  territory  of  the  United  States 
is  a  power  to  make  only  such  rules  and  regulations  as 
may  be  made  in  conformity  with  the  other  provisions  of 
the  Constitution.  That  Constitution  is  the  only  standard 
of  statutory  validity,  and  its  powers  and  restrictions  are 
to  be  found  only  in  its  words  as  judicially  construed.  As 
the  Court  of  Appeals  of  New  York  said  in  a  well-con- 
sidered case,23  ' l  If  the  courts  may  imply  limitation,  there 
is  no  bound  to  implication  except  judicial  discretion, 
which  must  place  the  courts  above  the  legislature  and 
also  the  Constitution  itself."  This  principle  necessarily 
excludes  any  reliance  upon  inference  from,  or  reference 
to,  the  general  spirit  of  the  Constitution  as  a  satisfactory 
ground  of  restraint  upon  legislative  freedom  of  action. 
Indeed,  it  is  inconceivable  that  men  who  had  signed,  or 
approved,  the  Declaration  of  Independence,  who  had 
fought  in  the  War  of  the  Revolution,  or  rejoiced  in  the 
victory  then  won  for  free  government,  could  ever  have 
contemplated  the  acquisition  by  the  United  States  of  any 
territory  whose  laws  should  be  such  only  as  Congress 
might  arbitrarily  impose.  Those  men  who  had  success- 
fully rebelled  against  the  English  crown  tolerated  no 
despotism,  benevolent  or  otherwise.  They  believed  in  a 
reign  of  law.  With  Junius,24  they  thought  that  "laws 
are  made  to  guard  against  what  men  may  do,  not  to  trust 
to  what  they  will  do."  They,  therefore,  framed  their 
written  constitution,  and  they  looked  to  it,  and  to  it  only, 
for  an  enumeration  of  the  powers  which  the  sovereign 
people  delegated  to  their  government.  In  conformity 
with  these  principles,  it  has  been  decided  that  constitu- 
tional restrictions  are  in  force  in  the  territories  and  in 
the  District  of  Columbia  so  far  as  regards  trial  by  jury,25 

23  Wynehamer  v.  The  People,  13  N.  Y.  428. 

24  Letter  to  Sir  William  Blackstone. 

26  Callan  v.  Wilson,  127  U.  S.  540 ;  Thompson  v.  Utah,  170  id.  343 ;  C.  T. 
Co.  v.  Hof,  174  id.  1.     See  also  Mormon  Church  v.  U.  S.,  136  id.  1,  67. 


THE  TERRITORIES.  11 

and  so  far  as  regards  the  rights  secured  by  the  V  Amend- 
ment.26 

If  such  be  the  correct  view  with  regard  to  the  legis- 
lative power  of  Congress  over  the  internal  affairs  of  the 
territories,  the  case  would  seem  to  be  even  clearer  with 
regard  to  the  regulation  of  the  relations  between  any  one 
territory  and  the  states  and  other  territories.  The  main 
reason  for  the  adoption  of  the  Constitution  was  to  estab- 
lish a  common  authority,  which  would  in  the  interest  of 
the  whole  country  impartially  regulate  foreign  and  inter- 
nal commerce,  and  secure  to  the  citizens  of  each  state 
and  of  every  territory  equal  rights  of  person  and  of  prop- 
erty in  every  other  state  and  territory;  and  to  that  end 
the  United  States  was  vested  with  powers,  and  restrained 
in  the  exercise  of  those  powers  by  certain  expressed  limi- 
tations. No  one  doubts  that,  so  far  as  regards  the  states, 
Congress,  being  the  creature  of  the  Constitution,  cannot 
exercise  any  power  of  legislation  other  than  that  which 
is,  expressly,  or  by  necessary  implication,  vested  in  it  by 
the  Constitution.  It  would  also  seem  that  even  if  Con- 
gress could,  in  the  exercise  of  the  power  of  making  rules 
and  regulations  in  its  untrammelled  discretion,  create, 
and  provide  for  the  administration  of,  local  governments 
in  the  territories,  it  can,  nevertheless,  only  regulate  com- 
merce as  between  the  states  and  the  territories,  and  impose 
duties  on  exports  and  imports  to  and  from  the  states  and 
the  territories  under  the  powers,  and  subject  to  the  restric- 
tions, of  the  Constitution.  Nevertheless,  in  the  Insular 
Cases,27  the  Supreme  Court  has  decided,  several  of  the 

26Bauman  v.  Boss,  167  U.  S.  548. 

27Downes  v.  Bidwell,  182  U.  S.  244;  De  Lima  v.  Bidwell,  ibid.  1; 
Dooley  v.  U.  S.,  ibid.  222;  Dooley  v.  U.  S.,  183  id.  151;  Fourteen 
Diamond  Bings,  Emil  J.  Pepke,  Claimant,  v.  U.  S.,  ibid.  176.  In 
Dorr  v.  United  States,  195  U.  S.  138,  154,  Peckham,  J.,  said  that 
Downes  v.  Bidwell,  supra,  "is  authority  only  for  the  proposition 
that  the  plaintiff  therein  was  not  entitled  to  recover  the  amount  of  duties 


12  EELATION   BETWEEN   THE   GOVERNMENTS. 

justices  dissenting,  that  Congress  could,  after  the  acquisi- 
tion of  Porto  Rico  as  territory  of  the  United  States,28 
impose  duties  upon  importations  into  ports  of  the  United 
States  from  Porto  Rico,  and  into  ports  of  Porto  Rico  from 
the  United  States  and  foreign  countries,  differing  from 
the  duties  imposed  upon  importations  into  the  United 
States  from  foreign  countries.  In  Hawaii  v.  Mankichi 29 
the  court  also  held  that  a  citizen  of  Hawaii  could,  after 
the  acquisition  of  that  island  as  territory  of  the  United 
States,  be  legally  convicted  of  crime  without  indictment 
by  a  grand  jury  and  by  the  verdict  of  only  a  majority  of 
a  petit  jury. 

In  Dorr  v.  U.  S.,30  the  question  was,  whether  in  the 
absence  of  a  statute  of  Congress  expressly  conferring  the 
right,  trial  by  jury  is  a  necessary  incident  in  judicial  pro- 
cedure in  the  Philippine  Islands,  where  demand  for  trial 
by  that  method  has  been  made  by  the  accused  and  denied 
by  the  courts  established  in  the  islands.  A  majority  of 
the  court  held  that  a  trial  by  jury  is  not  necessary  to  the 
validity  of  a  conviction,  sentence,  and  punishment  for 
crime  in  the  Philippine  Islands.31  It  is  possible  that  a 

he  had  paid  under  protest  upon  the  importation  into  the  city  of  New  York 
of  certain  oranges  from  the  Port  of  San  Juan,  in  the  Island  of  Porto 
Eico,  in  November,  1900,  after  the  passage  of  the  act  known  as  the 
Foraker  Act.  The  various  reasons  advanced  by  the  judges  in  reaching  this 
conclusion,  which  were  not  concurred  in  by  a  majority  of  the  court,  are 
plainly  not  binding/'  In  that  view  Fuller,  C.  J.,  and  Brewer,  J.,  con- 
curred. 

28  Act  of  12th  April,  1900,  31  Stat.  77,  c.  191. 

29 190  U.  S.  197.  Fuller,  C.  J.,  and  Harlan,  Brewer  and  Peckham,  JJ., 
dissented. 

80 195  U.  S.  138. 

81  Day,  J.,  delivered  the  judgment  of  the  court,  and  Fuller,  C.  J.,  and 
Brewer  and  Peckham,  JJ.,  concurred  in  the  result  upon  the  authority  of 
Hawaii  v.  Mankichi,  190  U.  S.  197.  Harlan,  J.,  dissented,  saying,  p.  154: 
"In  my  opinion,  guaranties  for  the  protection  of  life,  liberty,  and  property, 
as  embodied  in  the  Constitution,  are  for  the  benefit  of  all,  of  whatever  race 
or  nativity,  in  the  states  composing  the  Union,  or  in  any  territory,  however 
acquired,  over  the  inhabitants  of  which  the  government  of  the  United  States 
may  exercise  the  powers  conferred  upon  it  by  the  Constitution. ; ' 


THE  TEBKITOEIES.  13 

mistake  was  made  in  these  cases  in  not  distinguishing 
between  the  congressional  powers  of  general,  and  of  local, 
government  as  affecting  the  territories,  and  in  not  hold- 
ing that  the  Act  of  12th  April,  1900,  was,  in  so  far  as  it 
imposed  duties,  an  act  of  general,  and  not  of  local,  legis- 
lation, and,  as  such,  subject  to  constitutional  restrictions, 
and  in  not  holding  that  the  Constitution  equally  protects 
every  inhabitant  of  any  state  or  territory  in  his  rights  of 
person  and  of  property.  Mr.  Justice  White32  concedes 
that  a  duty  levied  in  the  United  States  on  goods  coming 
from  Porto  Rico  is  not  a  local  tax  and,  therefore,  not  an 
exercise  of  the  power  of  local  government,  but  he  sup- 
ports the  validity  of  such  a  tax  upon  the  theory  that  Porto 
Eico  had  not  been  "  incorporated  "  into  the  United  States. 
Mr.  Chief  Justice  Fuller  33  seems  to  answer  this  view  by 
calling  attention  to  the  provisions  of  the  act  imposing 
the  duty,  and  at  the  same  time  creating  a  civil  government 
for  Porto  Eico,  constituting  its  inhabitants  a  body  politic, 
giving  it  a  governor  and  other  officers,  a  legislative 
assembly,  and  courts  with  the  right  of  appeal  therefrom 
to  the  Supreme  Court  of  the  United  States,  and  thereby 
making  that  island,  whatever  its  situation  before,  then 
and  thenceforth  an  organized  territory  of  the  United 
States;  and  Mr.  Justice  Harlan34  pertinently  suggests, 
that  "if  Porto  Eico,  although  a  territory  of  the  United 
States,  may  be  treated  as  if  it  were  not  a  part  of  the  United 
States,  then  New  Mexico  and  Arizona  may  be  treated  as 
not  parts  of  the  United  States,  and  subject  to  such  legis- 
lation as  Congress  may  choose  to  enact  without  any  refer- 
ence to  the  restrictions  imposed  by  the  Constitution. ' ' 
The  same  learned  justice  also  said  35  that  the  doctrine  of 

32 182  U.  S.  299. 

"Ibid.  372. 

"IUd.  389. 

»  Hawaii  v.  Mankichi,  190  U.  S.  197,  240. 


14  RELATION  BETWEEN   THE  GOVERNMENTS. 

the  Insular  Cases  means,  "that,  if  the  principles  now 
announced  should  become  firmly  established,  the  time  may 
not  be  far  distant  when,  under  the  exactions  of  trade  and 
commerce,  and  to  gratify  an  ambition  to  become  the  domi- 
nant political  power  in  all  the  earth,  the  United  States 
will  acquire  territories  in  every  direction,  which  are  in- 
habited by  human  beings,  over  which  territories,  to  be 
called  ' dependencies r  or  i outlying  possessions,'  we  will 
exercise  absolute  dominion  and  whose  inhabitants  will  be 
regarded  as  ' subjects'  or  ' dependent  peoples,'  to  be  con- 
trolled as  Congress  may  see  fit,  not  as  the  Constitution 
requires,  nor  as  the  people  governed  may  wish." 

It  may  well  be  doubted  whether  the  advantages,  com- 
mercial and  otherwise,  obtainable  by  the  acquisition 
and  retention  of  foreign  colonial  possessions  will  ever 
compensate  the  country  for  their  cost  in  lives  and  in 
money,  and  for  the  difficulties  to  be  encountered  in  the  ex- 
tension of  free  institutions  and  constitutional  government 
to  peoples,  whose  history  and  traditions  are  foreign  to 
any  such  system.  But  as  we  have  acquired  colonial  pos- 
sessions, and  have,  by  reason  of  such  acquisition,  assumed 
obligations  to  them,  and  to  foreign  nations,  all  that  can 
now  be  done  is  to  govern  those  peoples  kindly,  justly,  and 
firmly,  and  to  educate  them  s  rapidly  as  possible  for  the 
duties  of  citizenship. 


CHAPTER  II. 

THE    IMPLIED    POWEES. 

9.  The  necessity  of  their  existence. 

10.  Their  constitutional  recognition. 

11.  The  test  of  the  relation  of  the  means  to  the  end. 

12.  Illustrations  of  the  exercise  of  the  implied  powers. 

13.  The  legal  tender  question. 

The  necessity  of  their  existence. 

9.  The  Constitution  was  not  framed  to  meet  only  the 
exigencies  of  the  period  of  its  formation,  nor  does  it  pur- 
port to  be  a  code  which  with  minute  detail  prescribes  all 
that  may  be  done  and  all  that  may  not  be  done  by  Con- 
gress in  the  execution  of  the  powers  specifically  granted.1 
As  Mr.  Webster  said  in  his  argument  in  Gibbons  v. 
Ogden,2  and  as  Marshall,  C.  J.,  repeated  in  his  judgment 
in  that  cause,3  the  Constitution  enumerates,  but  does  not 
define,  the  powers  which  it  grants,  nor  does  it  prescribe 
the  means  which  may  rightfully  be  used  in  executing 
those  powers,  and  without  whose  use  the  grant  of  the 
powers  would  be  nugatory.4  Therefore,  if  the  Constitu- 
tion contained  no  clause  recognizing  the  existence  of 
powers  which  are  subsidiary  or  incidental  to  the  powers 
expressly  granted,  it  would  be  impossible  to  avoid  the 
conclusion  that  there  is  an  implied  grant  of  such  inci- 
dental powers,  for  otherwise  the  powers  expressly  granted 
would  be  practically  inoperative.  Nor  is  the  force  of  this 
conclusion  at  all  affected  by  the  X  Amendment,  for  while 

1  McCulloch  v.  Maryland,  4  Wheat.  406 ;  Martin  v.  Hunter 's  Lessee,  1  id. 
326. 

2  6  Webster 's  Works,  9. 

3  9  Wheat.  189. 

4  McCulloch  v.  Maryland,  4  Wheat.  407. 

15 


16  THE    IMPLIED   POWERS. 

that  amendment  in  terms  forbids  the  exercise  by  Con- 
gress of  any  undelegated  power,  it  does  not  forbid  the 
exercise  of  powers  which  are  delegated  by  implication.5 

Their  constitutional  recognition. 

10.  Section  8  of  Article  I  of  the  Constitution  declares 
that  "the  Congress  shall  have  power  ...  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. " 
But,  it  may  be  said,  who  is  to  conclusively  determine 
whether  or  not  any  statute  is,  within  the  terms  of  the 
Constitution,  "necessary  and  proper  for  carrying  into 
execution "  a  power  granted  by  the  Constitution  to  Con- 
gress?   If  Congress  can  so  determine,  obviously  any  and 
every  act  of  Congress  must  be  regarded  as  constitutional. 
If  in  the  exercise  of  judicial  jurisdiction  the  final  deter- 
mination of  that  question  is  to  be  made  by  the  court,  what 
principles  are  to  guide  the  judges  in  coming  to  a  con- 
clusion, and  by  what  test  are  they  to  determine  the  rela- 
tion between  the  means  and  the  end,  and  the  degree  of 
the  necessity  and  the  propriety  of  the  use  of  the  particular 
means  ? 

The  test  of  the  relation  of  the  means  to  the  end. 

11.  The  result  of  the  authorities,  so  far  as  they  afford 
an  answer  to  this  question,  can  be  best  stated  by  the 
quotation  of  a  famous  dictum  originated  by  Mr.  Ham- 
ilton 6  and  paraphrased  by  Chief  Justice  Marshall  in  the 
judgment  in  McCulloch  v.  Maryland,7  and  which,  in  its 

6 Mr.  Hamilton's  argument  as  to  a  national  bank.     3  Lodge's  Hamilton's 
Works,  183;  McCulloch  v.  Maryland,  4  Wheat.  406. 

•Argument  as  to  a  national  bank.     3  Lodge's  Hamilton's  Works,  190. 
7  4  Wheat.  421. 


ILLUSTRATIONS   OF   IMPLIED   POWEES.  17 

final  perfected  form,  is  as  follows :  "Let  the  end  be  legiti- 
mate, let  it  be  within  the  scope  of  the  Constitution,  and 
all  means  which  are  appropriate,  which  are  plainly 
adapted  to  the  end,  which  are  not  prohibited,  but  consist 
with  the  letter  and  spirit  of  the  Constitution,  are  consti- 
tutional. ' ' 8  This  dictum  means  that  Congress  may,  in 
the  execution  of  a  power  expressly  granted,  adopt  any 
means  which  (1)  are  not  expressly  prohibited  by  the  Con- 
stitution, nor  (2)  inconsistent  with  the  letter  and  spirit 
of  the  Constitution,  and  which  are  (3)  not  the  only  pos- 
sible means,  nor  an  absolutely  or  indispensably  necessary 
means,  but  an  appropriate  and  plainly  adapted  means,  to 
the  attainment  of  an  end  authorized  by  the  Constitution. 
From  this  it  follows,  that  if  the  relation  of  the  means  to 
the  end  be  shown  to  exist,  and  if  the  use  of  the  particular 
means  be  not  expressly  or  impliedly  forbidden  by  the 
Constitution,  the  question  of  the  degree  of  its  appropriate- 
ness, of  its  greater  or  less  adaptation,  and  of  its  relative 
or  absolute  necessity  is  purely  political,  and  the  deter- 
mination of  Congress  with  regard  thereto  is  binding  upon 
the  courts. 

Illustrations  of  the  exercise  of  the  implied  powers. 

12.  Under  the  doctrine  of  the  implied  powers,  it  has 
been  held  that  Congress  may  enact  statutes  creating 
banking  corporations  as  fiscal  aids  to  the  government;9 
imposing  upon  national  and  state  banks  a  tax  upon  the 
amount  of  the  notes  of  state  banks  paid  out  by  them; 10 
giving  priority  to  the  United  States  as  a  creditor  in  the 

8  The  opposing  view,  sustaining  the  strict  construction  of  the  Constitution, 
is,  perhaps,  most  strongly  put  by  Mr.  Jefferson.  Memoirs,  Vol.  IV,  pp.  197, 
207,  526;  4  Elliot's  Debates,  609. 

9McCulloch  v.  Maryland,  4  Wheat.  316;  Osborn  v.  The  Bank  of  the  U.  S., 
9  id.  738. 

19  Veazie  Bank  v.  Fenno,  8  Wall.  533. 


18  THE   IMPLIED   POWEKS. 

distribution  of  the  assets  of  a  bankrupt;  n  declaring  that 
the  embezzlement  by  a  guardian  of  his  ward's  pension 
granted  by  the  United  States  is  a  crime  against  the 
United  States;12  taxing  lands  in  the  District  of  Colum- 
bia; 13  declaring  it  to  be  a  crime  to  bring  into  the  United 
States  from  a  foreign  place  counterfeit  coins  forged  in 
the  similitude  of  coins  of  the  United  States; 14  constitut- 
ing a  judicial  system  to  carry  into  execution  the  judicial 
powers  vested  by  the  Constitution  in  the  United  States ; 15 
regulating  the  carriage  of  the  mails  and  determining 
what  may  be  transported  and  what  must  be  excluded 
from  the  mails ; 16  punishing  for  contempt  others  than 
members  of  Congress; 17  protecting  citizens  of  the  United 
States  in  the  exercise  of  the  rights  of  suffrage  at  elections 
for  members  of  Congress;18  authorizing  a  limited  inter- 
course on  prescribed  conditions  with  the  enemy  in  time 
of  war; 19  prescribing  the  effect  to  be  given  in  state  courts 
to  judgments  and  decrees  rendered  in  courts  of  the 
United  States;20  authorizing  the  issue  by  courts  of  the 
United  States  of  writs  of  habeas  corpus  ad  subjiciendum 
in  cases  of  restraint  of  personal  liberty  under  the  process 
of  state  courts  issued  in  violation  of  rights  claimed  under 
the  Constitution  or  laws  of  the  United  States;21  author- 
izing the  removal  to  the  courts  of  the  United  States  of 

11  U.  S.  v.  Fisher,  2  Or.  358. 

12  U.  S.  v.  Hall,  98  U.  S.  343. 

13  Loughborough  v.  Blake,  5  Wheat.  317. 

14  U.  S.  v.  Marigold,  9  How.  560. 

15  Ableman  v.  Booth,  21  How.  506,  521. 

19  Ex  parte  Jackson,  96  U.  S.  727;  In  re  Kapler,  143  id.  110. 
"Anderson  v.  Dunn,  6  Wheat.  204;  In  re  Chapman,  166  U.  S.  661.     But 
see  Kilbourn  v.  Thompson,  103  id.  168. 

18  Ex  parte  Yarbrough,  110  U.  S.  651. 

19  Hamilton  v.  Dillin,  21  Wall.  73. 
20Embry  v.  Palmer,  107  U.  S.  3. 

21  Ex  parte  Koyall,  117  U.  S.  241;  Ex  parte  Fonda,  ibid.  516;  In  re  Neagle, 
135  id.  1;  Ohio  v.  Thomas,  173  id.  276;  Boske  v.  Comingore,  177  id.  459; 
cf.  Minnesota  v.  Brundage,  180  id.  499. 


ILLUSTRATIONS   OF   IMPLIED   POWERS.  19 

causes  depending  in  state  courts  and  involving  questions 
of  federal  cognizance ; 22  exercising  the  right  of  eminent 
domain  with  regard  to  land  within  the  bounds  of  a  state 
and  held  in  private  ownership ; 23  in  order  to  protect  pur- 
chasers under  the  homestead  laws  of  lands  belonging  to 
the  United  States  but  situated  within  the  limits  of  a  state, 
punishing  those  who  conspire  to  intimidate  such  pur- 
chasers and  drive  them  away  from  the  land  so  pur- 
chased;24 prohibiting,  under  penalties,  officers  of  the 
United  States  from  requesting,  giving  to,  or  receiving 
from  any  other  officer  money  or  property,  or  other  things 
of  value,  for  political  purposes;25  protecting  against  un- 
lawful violence  prisoners  accused  of  committing  crimes 
against  the  United  States,26  and  private  citizens  giving 
information  against  prisoners  so  held; 27  providing  for  the 
acquisition  of  territory; 28  establishing  consular  tribunals 
in  foreign  lands ; 29  and  providing  for  the  exclusion 30  or 
expulsion 31  of  aliens  from  the  limits  of  the  United  States. 

22 Martin  v.  Hunter's  Lessee,  1  Wheat.  304,  349;  Bock  v.  Perkins,  139 
U.  S.  628;  Marshall  v.  Holmes,  141  id.  589;  Martin  v.  B.  &  O.  E.,  151  id.  673. 

23  Kohl  v.  U.  S.,  91  U.  S.  367;  Luxton  v.  N.  E.  Bridge  Co.,  153  id.  525; 
Chappell  v.  U.  S.,  160  id.  499;  U.  S.  v.  G.  E.  Ey.,  ibid.  668. 

24  U.  S.  v.  Waddell,  112  U.  S.  76. 

25  Ex  parte  Curtis,  106  U.  S.  371;  Stat.  15th  Aug.,  1876,  c.  287,  sec.  6. 

For  further  illustrations  of  the  implied  powers  of  legislation  which  Con- 
gress may  exercise,  see  the  judgments  of  Story,  J.,  in  Prigg  v.  Penna.,  16 
Pet.  619;  of  Strong,  J.,  in  The  Legal  Tender  Cases,  12  Wall.  457,  535; 
of  Gray,  J.,  in  Juilliard  v.  Greenman,  110  U.  S.  421,  444;  of  Miller,  J., 
in  Ex  parte  Yarbrough,  ibid.  658,  and  in  In  re  Neagle,  135  id.  1,  and  of 
Bradley,  J.,  in  Mormon  Church  v.  U.  S.,  136  id.  1.  In  Downes  v.  Bidwell, 
182  id.  244,  and  again  in  Dooley  v.  U.  S.,  183  id.  151,  the  court  sustained 
an  act  of  Congress  which  imposed  duties  for  the  exclusive  benefit  of  those 
who  were  not  citizens  of  the  United  States. 

26  Logan  v.  U.  S.,  144  U.  S.  263. 

27  In  re  Quarles  and  Butler,  158  IT.  S.  532. 

28  A.  I.  Co.  v.  Canter,  1  Pet.  511;  De  Lima  v.  Bidwell,  182  U.  S.  1. 

29  In  re  Eoss,  140  U.  S.  453. 

80  Chinese  Exclusion  Case,  130  U.  S.  581;  Lem  Moon  Sing  v.  U.  S.,  158 
id.  538. 

81  Pong  Yue  Ting  v.  U.  S.,  149  U.  S.  698;   Japanese  Immigrant  Case, 
189  id.  86. 


20  THE   IMPLIED   POWEKS. 

The  legal  tender  question. 

13.  It  lias  also  been  held  that  Congress  may  issue  a 
paper  currency  and  declare  that  that  currency  shall  be 
a  legal  tender  in  payment  of  debts.  Until  in  1862  the 
financial  needs  of  the  government  in  carrying  on  a  war 
for  the  suppression  of  the  rebellion  rendered  it,  in  the 
opinion  of  Congress,  necessary  that  the  treasury  notes 
of  the  United  States  should  be  made  a  legal  tender  in 
the  payment  of  debts,  neither  statesmen  nor  jurists  had 
asserted  that  Congress  had,  under  the  Constitution,  the 
power  of  making  anything  but  gold  or  silver  coin  a  legal 
tender.  The  acts  of  Congress  of  25th  February,  1862, 
llth  July,  1862,  and  3d  March,  1863,32  declared  that  the 
notes  issued  thereunder  should  be  "  lawful  money  and 
a  legal  tender  in  payment  of  all  debts,  public  and  private, 
within  the  United  States,  except  duties  on  imports,  etc." 
Under  these  acts  it  has  been  decided  that  neither  taxes 
imposed  by  state  authority,33  nor  private  obligations 
payable  by  their  terms  in  gold  or  silver  coin,34  are  debts 
within  the  terms  of  the  acts  of  Congress  dischargeable 
by  payment  in  legal  tender  notes.  In  Hepburn  v.  Gris- 
wold,35  the  court  held  that  the  Legal  Tender  Acts  applied 
to  debts  contracted  before  as  well  as  to  debts  contracted 
after  the  enactment  of  those  statutes,  and  that,  so  far  as 
they  applied  to  debts  contracted  before  their  passage,  the 
statutes  were  unconstitutional,  but  in  the  Legal  Tender 
Cases36  Hepburn  v.  Griswold  was  overruled,  so  far  as 
regards  the  second  branch  of  the  proposition  laid  down 
in  it,  and  the  constitutionality  of  the  Legal  Tender  Acts 

82 12  Stat.  345,  532,  709. 

88  Lane  County  v.  Oregon,  7  Wall.  71;  Hagar  v.  Eeclamation  District, 
111  U.  S.  701. 

"Bronson  v.  Eodes,  7  Wall.  229;  Butler  v.  Horwitz,  ibid.  258;  Bronson 
v.  Kimpton,  8  id.  444. 

86  8  WaU.  603. 

36 12  Wall.  457. 


THE   LEGAL   TENDEE   QUESTION.  21 

was  sustained,  the  ground  of  decision  being  that  the 
power  to  impress  the  notes  of  the  government  with  the 
quality  of  legal  tender,  though  not  expressed  in  the  Con- 
stitution, was  "necessary  and  proper  for  carrying  into 
execution"  the  express  powers  to  "coin  money,  "  "to 
regulate  the  value  thereof,  "  "to  pay  the  debts,"  "to 
borrow  money,"  "to  raise  and  support  armies,"  and  "to 
provide  and  maintain  a  navy  ;  '  '  that  the  Constitution  does 
not  expressly  prohibit  the  issue  of  legal  tender  notes  by 
the  United  States;  that  their  issue  is  not  inconsistent 
with  the  letter  or  the  spirit  of  the  Constitution,  and  that 
the  end  being  constitutional  and  the  means  being  appro- 
priate, the  degree  of  its  appropriateness  is  subject  to 
legislative,  and  not  judicial,  determination.  The  Legal 
Tender  Cases  are  followed  and  supported  by  Dooley  v. 
Smith,37  Bigler  v.  Waller,38  N.  &  W.  E.  v.  Johnson  39  and 
Julliard  v.  Greenman,40  in  the  last  of  which  cases  it  was 
held,  that  the  power  to  make  treasury  notes  a  legal  tender 
exists  in  time  of  peace  as  well  as  in  time  of  war,  and  that 
legal  tender  notes  when  redeemed  by  the  Treasury  and 
reissued  under  the  Act  of  31st  May,  1878,  retain  their 
legal  tender  quality. 

The  legal  tender  which  the  law  compels  a  creditor  to 
accept  in  satisfaction  of  a  debt  payable  in  money  should 
never  be  anything  other  than  that  money  which  has  a 
market  value  as  a  commodity,  independently  of  any  gov- 
ernmental fiat  and  of  all  legal  tender  laws.  The  giving  of 
the  legal  tender  quality  to  currency  of  inferior  purchasing 
power  has  never  succeeded  in  increasing  that  purchasing 
power,  but  it  has  in  many  instances  enabled  debtors  to 
defraud  creditors. 


87  13  Wall.  604. 

38  14  Wall.  297. 

39  15  Wall.  195. 

40  110  U.  S.  421. 


CHAPTER  in. 

TAXATION. 

14.  Taxation  defined  and  limited. 

15.  Taxation  by  the  United  States. 

16.  Kestrictions  upon  federal  taxation. 

17.  Taxation  of  exports. 

18.  Direct  taxation. 

19.  Eequirement  of  uniformity. 

20.  Taxation  in  the  territories. 

21.  Exemption  of  state  agencies  from  taxation  by  the  United  States. 

22.  Charges  which  are  not  taxes  exempt  from  constitutional  restraints. 

23.  Taxation  by  the  states. 

24.  Expressed  restraints  upon  state  taxation. 

25.  Implied   restraint   upon   state   taxation   resulting   from   the   federal 

supremacy. 

26.  Taxation  of  national  banks. 

27.  State  taxation  as  affected  by  the  prohibition  of  the  impairment  of 

the  obligation  of  contracts. 

28.  State  taxation  as  affected  by  the  grant  to  Congress  of  the  power  of 

regulating  commerce. 

Taxation  defined  and  limited. 

14.  Taxation  is  the  compulsory  exaction  by  a  govern- 
ment, in  the  exercise  of  its  sovereignty,  of  a  payment  of 
money  or  surrender  of  property  by  any  person,  natural 
or  corporate,  who,  or  whose  property  so  taxed,  is  subject 
to  the  sovereign  power  of  that  government.1  Taxation 
operates  upon  real  property  and  upon  tangible  personal 
property  by  reason  of  its  situs  or  presence  within  the 
territory  of  the  taxing  power.2  It  operates  upon  choses 
in  action  by  reason  of  the  subjection  of  the  owner  thereof 

1  The  State  Freight  Tax,  15  Wall.  277 ;  McCulloch  v.  Maryland,  4  Wheat. 
420;  Ashley  v.  Eyan,  153  U.  S.  436;  N.  Y.,  L.  E.  &  W.  E.  v.  Pennsylvania, 
ibid.  628;  D.  &  H.  C.  Co.  v.  Pennsylvania,  156  id.  200;  W.  U.  T.  Co.  v. 
Taggart,  163  id.  1;   Savings  Society  v.  Multnomah  County,  169  id.  421; 
Dewey  v.  Des  Moines,  173  id.  193. 

2  Mager  v.  Grima,  8  How.  490;  Coe  v.  Errol,  116  U.  S.  517;  P.  P.  C.  Co.  v. 
Pennsylvania,  141  id.  18;  C.,  C.,  C.  &  St.  L.  Ey.  v.  Backus,  154  id.  439; 
Savings  Society  v.  Multnomah  County,  169  id.  421;  Bristol  v.  Washington 
County,  177  id.  133. 

22 


TAXATION    DEFINED   AND   LIMITED.  23 

to  the  jurisdiction  of  the  government  imposing  the  tax.3 
Every  possible  exaction  of  money  or  property  by  a  gov- 
ernment from  those  who  are  subject  to  its  jurisdiction  is 
not  a  tax;  thus,  a  duty  of  so  much  per  passenger,  imposed 
by  the  United  States  in  the  exercise  of  the  power  to  regu- 
late commerce  on  owners  of  vessels  bringing  passengers 
from  foreign  ports  into  ports  of  the  United  States,  in 
order  to  raise  a  fund  to  mitigate  the  evils  incident  to 
immigration,  is  "not  a  tax  or  duty  within  the  meaning 
of  the  Constitution ; ' ' 4  for,  as  Miller,  J.,  said  in  the  judg- 
ment in  that  cause,5  "the  money  thus  raised,  though 
paid  into  the  treasury,  is  appropriated  in  advance  to  the 
uses  of  the  statute,  and  does  not  go  to  the  general  sup- 
port of  the  government.  It  constitutes  a  fund  raised 
from  those  who  are  engaged  in  the  transportation  of 
those  passengers,  and  who  make  profit  out  of  it,  for  the 
temporary  care  of  the  passengers  whom  they  bring  among 
us  and  for  the  protection  of  the  citizens  among  whom  they 
are  landed. ' '  Nor  is  a  tax  levied,  in  the  strict  sense  of  the 
word,  when  the  cost  of  executing  the  banking  laws  is  met 
by  a  charge  on  bank  notes,  and  a  bill  for  that  purpose 
need  not  originate  in  the  House  of  Eepresentatives.6  On 
the  same  principle,  a  charge  made  by  a  state  for  facili- 
ties furnished  by  it,  directly  or  indirectly,  for  the  move- 
ment of  commerce,  in  the  form  of  improved  waterways,7 
or  wharves,8  or  railways,9  or  a  charge  on  telegraph  com- 

3  Bonaparte  v.  Tax  Court,  104  U.  S.  592 ;  Nevada  Bank  v.  Sedgwick,  ibid. 
Ill;  Kirtland  v.  Hotchkiss,  100  id.  491;  N.  Y.,  L.  E.  &  W.  E.  v.  Penn- 
sylvania, 153  id.  628 ;  D.  &  H.  C.  Co.  v.  Pennsylvania,  156  id.  200. 

4  The  Head  Money  Cases,  112  U.  S.  580. 
6  P.  595. 

8  Twin  City  Bank  v.  Nebeker,  167  U.  S.  196. 

7Huse  v.  Glover,  119  U.  S.  543;   Sands  v.  M.  E.  I.  Co.,  123  id.  288; 
L.  &  P.  Co.  v.  Mullen,  176  id.  126.     But  see  Harman  v.  Chicago,  147  id.  396. 

8  Packet  Co.  v.  Keokuk,  95  U.  S.  80;  Packet  Co.  v.  St.  Louis,  100  id.  423; 
Vicksburg  v.  Tobin,  ibid.  430;  Packet  Co.  v.  Catlettsburg,  105  id.  559;  Trans- 
portation Co.  v.  Parkersburg,  107  id.  691 ;  O.  P.  Co.  v.  Aiken,  121  id.  444. 

9  B.  &  O.  E.  v.  Maryland,  21  Wall.  456. 


24  TAXATION. 

panies  for  the  use  of  the  streets  for  their  poles,  or  for  the 
governmental  supervision  of  their  poles  and  wires,10  or 
a  charge  on  adjoining  property  for  local  improvements, n 
or  a  charge  for  quarantine  or  other  examination,12  cannot 
be  said  to  be  a  tax.  The  power  of  taxation  is  vested  in 
the  legislative  department  of  the  government,13  but  it 
may  be  delegated  by  states  to  political  subdivisions,  such 
as  counties  and  municipalities,14  and  a  state  may  deter- 
mine the  bounds  of  a  municipality  and  prescribe  its  rate 
of  taxation.15  By  whomsoever  exercised,  or  to  whom- 
soever delegated,  the  power  can  only  be  exercised  for 
public  purposes.  Taxes,  therefore,  cannot  be  imposed  in 
aid  of  enterprises  strictly  private,  such  as  the  establish- 
ment of  manufactories16  or  of  private  grist  mills;17  but 
when  the  purpose  is  public,  though  not  directly  connected 
with  the  administration  of  government,  taxes  may  right- 
fully be  laid  to  aid  in  its  accomplishment,  as  in  the  cases 
of  state  reform  schools; 18  grist  mills  required  by  statute 
to  grind  for  all  customers  on  payment  of  certain  tolls; 19 

10  St.  Louis  v.  W.  U.  T.  Co.,  148  U.  S.  92;  P.  T.  C.  Co.  v.  Baltimore,  156 
id.  210;  W.  U.  T.  Co.  v.  New  Hope,  187  id.  419.  Charges  for  supervision 
in  P.  T.  C.  Co.  v.  New  Hope,  192  id.  55;  P.  T.  C.  Co.  v.  Taylor,  ibid.  64,  were 
excessive  and  therefore  invalid.  See  also  A.  &  P.  T.  Co.  v.  Philadelphia, 
190  id.  160. 

11 1.  C.  E.  v.  Decatur,  147  U.  S.  190;  Peake  v.  New  Orleans,  139  id.  342; 
Fallbrook  Irr.  Dist.  v.  Bradley,  164  id.  112;  Ford  v.  D.  &  P.  L.  Co.,  ibid.  662; 
cf.  Spencer  v.  Merchant,  125  id.  345.  See  also  Norwood  v.  Baker,  172  id. 
269;  Dewey  v.  Des  Moines,  173  id.  193;  French  v.  B.  A.  P.  Co.,  181  id.  324; 
Tonawanda  v.  Lyon,  ibid.  389;  Carson  v.  Brockton  S.  Com.,  182  id.  398; 
King  v.  Portland,  184  id.  61;  Voigt  v.  Detroit,  ibid.  115;  Goodrich  v. 
Detroit,  ibid.  432. 

"Morgan  v.  Louisiana,  118  U.  S.  455;  N.,  C.  &  St.  L.  Ey.  v.  Alabama, 
128  id.  96.  See  also  C.,  C.  &  A.  E.  v.  Gibbes,  142  id.  386. 

"Meriwether  v.  Garrett,  102  II.  S.  472. 

"Gilman  v.  Sheboygan,  2  Bl.  510;  U.  S.  v.  New  Orleans,  98  U.  S.  381. 

*  Kelly  v.  Pittsburgh,  104  U.  S.  78. 

"Loan  Assn.  v.  Topeka,  20  Wall.  655;  Parkersburg  v.  Brown,  106  U.  S. 
487;  Cole  v.  La  Grange,  113  id.  1. 

17  Osborne  v.  County  of  Adams,  106  U.  S.  181,  109  id.  1. 

18  County  of  Livingston  v.  Darlington,  101  U.  S.  407. 

19  Burlington  v.  Beasley,  94  U.  S.  310. 


TAXATION   BY   THE   UNITED   STATES.  25 

the  improvements  of  water  powers  of  rivers  for  general 
purposes; 20  the  payment  of  bounties  to  volunteer  soldiers 
in  time  of  war ; 21  or  for  the  construction  of  railways.22 
When  bonds,  though  issued  in  aid  of  private  purposes,  on 
their  face  appear  to  have  been  issued  for  public  purposes, 
they  are  valid  and  enforceable  in  the  hands  of  bona  fide 
holders  for  value  and  without  notice.23 

Taxation  by  the  United  States. 

15.  Section  8  of  Article  I  of  the  Constitution  declares 
that  "the  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and 
provide  for  the  common  defense  and  general  welfare  of 
the  United  States;  but  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States."  At 
one  period  in  the  history  of  the  country  political  parties 
were  at  issue  as  to  the  construction  to  be  given  to  this 
section  of  the  Constitution,  the  Federalists  contending 
that  the  section  granted  in  express  terms  three  sub- 
stantive and  independent  powers,  namely,  (1)  to  lay  and 
collect  taxes,  duties,  imposts,  and  excises,  (2)  to  pay  the 
debts,  and  (3)  to  provide  for  the  common  defense  and 
general  welfare  of  the  United  States ;  and  the  Democrats 
asserting  that  the  section  granted  but  one  substantive 
power,  that  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  and  limited  the  exercise  of  that  power  to  the  pur- 
pose of  paying  the  debts  and  providing  for  the  common 
defense  and  general  welfare  of  the  United  States.  The 
Federalist  view  was  open  to  the  objection  that  a  power 

20  Blair  v.  Cuming  County,  111  U.  S.  363. 

21  Middleton  v.  Mullica  Township,  112  U.  S.  433. 

"Bogers  v.  Burlington,  3  Wall.  654;  Queensbury  v.  Culver,  19  id.  83; 
Taylor  v.  Ypsilanti,  105  U.  S.  60;  Olcott  v.  The  Supervisors,  16  Wall.  678; 
B.  Co.  v.  County  of  Otoe,  ibid.  667 ;  Young  v.  Clarendon  Township,  132  U.  S. 
340.  See  also  Wilkes  County  Comrs.  v.  Coler,  190  id.  107. 

28  Hackett  v.  Ottawa,  99  U.  S.  86 ;  Ottawa  v.  National  Bank,  105  id.  343 ; 
Ottawa  v.  Carey,  108  id.  110,  118. 


26  TAXATION. 

to  legislate  for  the  common  defense  and  general  welfare 
of  the  United  States  would  authorize  Congress  to  do  any- 
thing and  everything,  and  would  render  superfluous  the 
delegation  of  other  express  powers  of  legislation  in  the 
same  section;  but  the  Democratic  view,  however  sound 
in  theory,  could  never  be  judicially  affirmed,  for,  as  Con- 
gress has  admittedly  some  power  of  taxation,  a  court, 
looking,  as  it  is  bound  to  look,  not  at  the  question  of  ex- 
pediency but  solely  at  the  question  of  power,  could  never 
determine  an  act  of  Congress  imposing  a  tax  to  be  uncon- 
stitutional because  it  was  intended  for  some  purpose 
other  than  that  of  paying  the  debts  and  providing  for 
the  common  defense  and  general  welfare  of  the  United 
States.  That  restraint,  therefore,  upon  the  congressional 
power  of  taxation,  if  it  be  a  restraint,  is  of  moral,  and 
not  of  legal,  sanction. 

Restrictions  upon  federal  taxation. 

16.  "The  power  of  Congress  to  tax  ...  is  given  in 
the  Constitution  with  only  one  exception  and  only  two 
qualifications.  Congress  cannot  tax  exports,  and  it  must 
impose  direct  taxes  by  the  rule  of  apportionment,  and 
indirect  taxes  by  the  rule  of  uniformity.  Thus  limited, 
and  thus  only,  it  reaches  every  subject  and  may  be  exer- 
cised at  discretion.  ' ' 24  The  constitutional  power  of  tax- 
ation vested  in  the  United  States  is  coextensive  with  the 
territory  ' l  subject  to  their  jurisdiction. ' '  It  does  not  oper- 
ate in  a  port  of  one  of  the  United  States  during  a  tempor- 
ary occupation  of  that  port  by  the  armed  forces  of  a  public 
enemy,25  nor  in  foreign  territory  temporarily  occupied 
by  the  armed  forces  of  the  United  States,26  but  during 
such  temporary  occupation  the  armed  forces  in  possession 

24  License  Tax  Case,  5  Wall.  471.     See  McCray  v.  U.  S.,  195  U.  S.  27. 

25  U.  S.  v.  Eice,  4  Wheat.  246. 

26  Fleming  v.  Page,  9  How.  603. 


RESTRICTIONS    UPON    FEDERAL   TAXATION.  27 

of  such  territory  may,  under  the  rules  of  international 
law,  levy  and  collect  such  duties  and  taxes  as  the  military 
authorities  impose.27  On  the  other  hand,  the  constitu- 
tional power  of  taxation  does  operate  upon  foreign  ter- 
ritory acquired  by  treaty,  but  only  from  and  after  the 
ratification  of  the  treaty.  Thus,  importations  into  Cali- 
fornia after  the  ratification  of  the  treaty  which  ended 
the  war  with  Mexico  and  ceded  California  to  the  United 
States  were  subject  to  duties  under  the  then  tariff  laws 
of  the  United  States,  which  took  effect  immediately  upon 
the  ratification  of  the  treaty.28  Conversely,  from  and 
after  the  ratification  of  the  treaty  which  ended  the  war 
with  Spain  and  ceded  Porto  Rico  and  the  Philippines  to 
the  United  States,  those  islands  ceased  to  be  foreign  terri- 
tory, and  thereafter,  but  only  until  Congress  otherwise 
provided,29  importations  from  those  islands  into  other 
ports  of  the  United  States  were  not  subject  to  duty  under 
the  then  tariff  laws  of  the  United  States,30  and,  so  far  as 
regards  the  Philippines,  that  conclusion  was  not  affected 
by  the  continuance  in  insurrection  against  the  United 
States  of  those  who  had  previously  been  in  insurrection 
against  Spain.  The  constitutional  power  of  taxation  is, 
therefore,  operative  within  the  states,  in  the  District  of 
Columbia,31  and  also  in  the  territories,  but  only  to  the 
extent  of  the  constitutional  grant  and  subject  to  the  limi- 
tations imposed  by  the  Constitution,  with  the  important 
exceptions  that  in  Porto  Rico  and  the  Philippines  its 
operation  is  not  subject  to  the  constitutional  requirement 
of  uniformity,32  and  that  articles  exported  from  the  states 

27  Dooley  v.  U.  S.,  182  U.  S.  222. 

28  Cross  v.  Harrison,  16  How.  164. 

29  Downes  v.  Bidwell,  182  U.  S.  244. 

30  De  Lima  v.  Bidwell,  182  U.  S.   1;   Fourteen  Diamond  Eings,  Pepke, 
Claimant,  v.  U.  S.,  183  id.  176. 

31  Loughborough  v.  Blake,  5  Wheat.  317. 

32  Downes  v.  Bidwell,  182  U.  S.  244.       , 


28  TAXATION. 

to  Porto  Rico  may  be  taxed  by  duties  levied  upon  those 
articles  when  "imported  from  the  United  States "  into 
Porto  Rico.33 

Taxation  of  exports. 

17.  "No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  state/'34  The  constitutional  language  is  "no 
tax  or  duty,"  and  "the  requirement  is  that  exports  shall 
be  free  from  any  governmental  burden."35  The  word 
"export,"  as  used  in  the  constitutional  prohibition  of 
state  imposition  of  duties,36  has  been  held  to  apply  only 
to  foreign,  and  not  to  interstate,  commerce,37  and  the  same 
construction  has  been  given  by  a  divided  court 38  to  the 
prohibition  of  the  imposition  by  the  United  States  of 
duties  on  exports,  as  affecting  goods,  to  quote  the  words 
of  the  statute,  "imported  from  the  United  States"  into 
Porto  Rico  under  the  Act  of  12th  April,  1900.39  Yet  the 
place  at  which  the  duty  is  levied  and  collected  ought  not 
to  be  held  to  change  the  character  of  the  duty.  As  Mar- 
shall, C.  J.,  suggested,40  a  duty  upon  exports  would  not 
cease  to  be  such  when  collected  by  a  revenue  cutter  cruis- 
ing off  the  coast.  If  so,  why  does  the  duty  cease  to  be 
a  duty  upon  exports  when  collected  for  the  United  States 
by  officers  of  the  United  States  under  an  act  of  Congress 
at  an  island  in  the  West  Indies  ceded  to,  owned  by,  and 
governed  by  the  United  States,  and  when  the  act  in  terms 
imposes  the  duties  upon  goods  "imported  from  the  United 
States'?"  It  is  obviously  the  fact  that  "no  article  can  be 
imported  from  one  state  into  another  which  is  not  at  the 

"Dooley  v.  U.  S.  (second  case),  183  U.  S.  151. 
"Article  I,  Sec.  9,  Par.  5. 

85  Per  Brewer,  J.,  Fairbank  v.  U.  S.,  181  U.  S.  283. 

86  Article  I,  Sec.  10,  Par.  2. 

87  Woodruff  v.  Parham,  8  Wall.  123. 

MDooley  v.  U.  S.  (second  case),  183  U.  S.  151.     Four  justices  dissented. 
89  31  Stat.  77,  c.  191,  sees.  2  and  3. 
40  Brown  v.  Maryland,  12  Wheat.  445. 


TAXATION    OF   EXPORTS.  29 

same  time  exported  from  the  former. "  41  It  would  seem 
to  be  equally  clear  that  goods  "imported  from  the  United 
States "  into  Porto  Eico  are  as  certainly  goods  exported 
from  the  United  States  to  Porto  Eico.  It  may  also  be 
suggested  that  the  constitutional  prohibition  applies  in 
terms  to  articles  exported  from  any  state  without  regard 
to  their  destination,  and  that  there  is  nothing  in  the  terms 
of  the  provision,  or  in  its  context,  or  in  the  history  of 
the  Constitution,  to  support  a  judicial  qualification  of 
the  provision  by  adding  thereto  the  words  "to  foreign 
countries."  In  the  view  of  the  court,  Porto  Eico  is  at 
one  and  the  same  time  "foreign"  in  order  to  justify  the 
collection  at  ports  of  the  United  States  of  duties  upon 
imports  from  Porto  Eico,  and  "domestic"  in  order  to 
justify  the  collection  at  Porto  Eico  of  duties  upon  exports 
from  the  United  States. 

Internal  revenue  stamps  required  to  be  placed  by  the 
manufacturer  upon  articles  made  for  exportation  were 
held  not  to  fall  within  the  prohibition,  when  "in- 
tended for  no  other  purpose  than  to  separate  and 
identify"  that  "which  the  manufacturer  desires  to 
export,  and  thereby  instead  of  taxing  it  to  relieve  it 
from  the  taxation"  to  which  articles  intended  for 
domestic  use  are  subjected;42  and  the  Constitution  does 
not  prohibit  the  imposition  of  the  same  amount  of 
internal  revenue  taxation  upon  goods  exported  as  upon 
similar  goods  intended  for  domestic  consumption ; 43  but, 
on  the  other  hand,  a  specific  stamp  duty  imposed  "for 
and  in  respect  of  the  .  .  .  paper  .  .  .  upon  which  .  .  . 
shall  be  written  or  printed  ...  a  bill  of  lading,"  and  not 
graduated  in  amount  according  to  the  quantity  or  value 
of  the  articles  covered  thereby,  has  been  held,  in  a  recent 

41  Per  Miller,  J.,  in  Woodruff  v.  Parham,  8  Wall.  123. 

42  Pace  v.  Burgess,  92  U.  S.  372;  Turpin  v.  Burgess,  117  id.  504. 
48  Cornell  v.  Coyne,  192  U.  S.  418. 


30  TAXATION. 

case,44  by  a  divided  court,  four  justices  dissenting,  to  be 
in  effect  a  tax  upon  the  articles  covered  by  the  bill  of 
lading,  and,  therefore,  as  applied  to  foreign  and  outgoing 
bills  of  lading,  a  tax  upon  exports. 

Direct  taxation . 

18.  "No  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  herein- 
before directed  to  be  taken. "45  "Ordinarily  all  taxes 
paid  primarily  by  persons  who  can  shift  the  burden  upon 
some  one  else,  or  who  are  under  no  legal  compulsion  to 
pay  them,  are  considered  indirect  taxes,"  46  and  taxes  im- 
posed upon  individuals  in  their  personal  capacity,  or  upon 
individuals  in  respect  of  their  ownership  of  their  property, 
are  direct  taxes.47  In  1796  the  court  decided48  that 
a  tax  on  carriages  for  the  conveyance  of  persons  under 
the  act  of  1794 49  was  an  excise,  and,  therefore,  an 
indirect  tax.  In  the  argument  Alexander  Hamilton 
said,  "The  following  are  presumed  to  be  the  only 
direct  taxes:  capitation  or  poll  taxes;  taxes  on  lands 
and  buildings;  general  assessments,  whether  on  the 
whole  property  of  individuals  or  on  their  whole  real 
or  personal  property.  All  else  must  of  necessity  be  con- 
sidered as  indirect  taxes."  Chase,  J.,  said  that  he  was 
inclined  to  think,  but  did  not  give  a  judicial  opinion, 
"that  the  direct  taxes  contemplated  by  the  Constitution 
are  only  two,  to  wit,  a  capitation,  or  poll  tax,  simply 
without  regard  to  property,  possession,  or  any  other  cir- 
cumstances; and  a  tax  on  land."50  Paterson,  J.,  said, 

44  Fail-bank  v.  U.  S.,  181  U.  S.  283. 

48  Constitution,  Art.  I,  Sec.  9,  Par.  4. 

48  Per  Fuller,  C.  J.,  Pollock  v.  F.  L.  &  T.  Co.,  157  U.  S.  558. 

47  Hon.  Geo.  F.  Edmunds '  Argument,  ibid.  491. 

48  Hylton  v.  U.  S.,  3  Ball.  171. 
49 1  Stat.  373. 

.   M  3  Ball.  175. 


DIKECT   TAXATION.  31 

"Whether  direct  taxes,  in  the  sense  of  the  Constitution, 
comprehend  any  other  tax  than  a  capitation  tax,  and 
tax  on  land,  is  a  questionable  point.  "51  Iredell,  J., 
said,  "Perhaps  a  direct  tax  .  .  .  can  mean  nothing  but 
a  tax  on  something  inseparably  annexed  to  the  soil; 
something  capable  of  apportionment  under  all  such  cir- 
cumstances/'52  Wilson,  J.,  contented  himself  with  af- 
firming the  constitutionality  of  the  tax  in  question.53  It 
was  held  in  later  cases  that  neither  taxes  on  personal  in- 
incomes  54  under  the  Act  of  5th  August,  1861,55  and  its  sup- 
plements ;  nor  taxes  on  distilled  spirits ; 56  nor  taxes  on 
manufactured  tobacco ; 5T  nor  taxes  on  the  business  of 
refining  sugar,  measured  by  the  gross  annual  receipts  ot 
the  refiners ; 58  nor  succession  duties  on  the  devolution 
of  title  to  real  or  personal  estate ; 59  nor  stamp  duties  on 
a  memorandum  of  sale  of  a  certificate  of  stock,60  or  on 
an  '  *  agreement  of  sale  or  agreement  to  sell  any  products 
or  merchandise  at  any  exchange,  or  board  of  trade,  or 
other  similar  place,  either  for  present  or  future  de- 
livery ;"61  nor  taxes  on  the  notes  of  state  banks  paid 
out  by  national  banks ; 62  nor  taxes  on  the  receipts  of  in- 
surance companies  from  premiums  and  assessments,63 
are  direct  taxes,  but  that  all  such  taxes  are  imposts  or 

81  Ibid.  177. 

52  Ibid.  183. 

53  Ibid.  184. 

54  Springer  v.  U.  S.,  102  U.  S.  586. 
50 12  Stat.  309. 

56  U.  S.  v.  Singer,  15  Wall.  111. 
67Patton  v.  Brady,  184  U.  S.  609. 
58  S.  S.  E.  Co.  v.  McClain,  192  U.  S.  397. 

69Scholey  v.  Eew,  23  Wall.  331;  Knowlton  v.  Moore,  178  U.  S.  41,  79,  83; 
Murdock  v.  Ward,  ibid.  139. 

60  Thomas  v.  U.  S.,  192  U.  S.  363. 

61  Nieol  v.  Ames,  173  U.  S.  509.     The  Union  Stock  Yards  in  Chicago  are 
a  ' '  similar  place ' '  within  the  meaning  of  the  taxing  act. 

62  V.  Bank  v.  Fenno,  8  Wall.  533 ;  National  Bank  v.  U.  S.,  101  U.  S.  1. 
68  P.  I.  Co.  v.  Soule,  7  Wall.  433. 


32  TAXATION. 

excises.  It  has  been  suggested  that  the  tax  under  con- 
sideration in  the  Hylton  case  was  in  reality  a  tax  upon 
transportation  and  as  such  capable  of  transference  to 
the  person  carried,  and,  therefore,  when  imposed  upon 
the  carrier  clearly  an  indirect,  and  not  a  direct,  tax ;  that 
the  tax  under  consideration  in  Singer's  case  was  clearly 
an  excise ;  that  the  tax  under  consideration  in  the  Veazie 
Bank  case  was  in  its  own  nature  not  a  tax  at  all,  but  an 
exercise  by  Congress  of  the  power  to  prohibit  the  issue 
of  circulation  by  state  banks  in  order  to  stimulate  the 
formation  of  national  banks;  and  that  the  tax  under 
consideration  in  the  Insurance  Company's  case  was  an 
indirect  tax  because  capable  of  transference  to  the 
policy-holders  paying  premiums  and  assessments. 
Springer's  case  was  decided  long  after  the  income  tax  of 
1861  had  been  repealed,  and  when  the  popular  and  pro- 
fessional interest  in  the  subject  had  ended,  for  no  one 
then  believed  that  this  country  would  ever  again  be 
called  upon  to  pay  an  income  tax  under  the  laws  of  the 
United  States.  It  is  the  consensus  of  economic  authori- 
ties that  income  tax  laws,  even  when  wisely  framed, 
should  be  reserved  only  for  great  public  emergencies, 
for  the  reason  that  they  are  necessarily  unequal  in  oper- 
ation in  that  they  fall  most  heavily  on  those  who 
conscientiously  make  full  returns;  and  that  when  re- 
sorted to  they  should  tax  impartially  the  surplus  income 
of  every  citizen,  over  and  above  that  minimum  which 
suffices  for  the  necessities  of  the  life  of  an  individual,  and 
that  incomes  received  from  salaries,  or  from  professional 
compensation,  if  taxed  at  all,  should,  by  reason  of  their 
terminable  character,  be  less  heavily  taxed  than  incomes 
derived  from  invested  funds.  Under  the  income  tax 
legislation  of  1861  and  its  supplements,  when  the  amount 
exempted  was  $600  the  tax  was  paid  by  only  four  hundred 


DIEECT   TAXATION.  33 

and  sixty  thousand  persons,  and  when  the  amount  ex- 
empted was  $1,000  the  tax  was  paid  by  less  than  two 
hundred  and  fifty  thousand  persons.  The  state  of  New 
York  paid  nearly  one-third  of  that  tax,  and  the  states  of 
New  York  and  Pennsylvania  paid  nearly  one-half  thereof. 
The  population  and  the  wealth  of  the  country  had  largely 
increased  in  the  years  preceding  1894,  but  it  is  certain 
that  by  reason  of  the  larger  amount  exempted  from  tax- 
ation under  the  act  of  that  year,  the  burden  of  the  tax 
imposed  by  that  law  would  have  been  borne  by  a  relatively 
small  number  of  persons,  certainly  not  more  than  two 
per  cent,  of  the  population  of  the  country.  That  law  was 
a  very  objectionable  specimen  of  class  legislation.  Not 
content  with  exempting  the  minimum  amount  which 
suffices  for  the  necessities  of  the  life  of  an  individual,  and 
which  in  1894  certainly  did  not  exceed  $600,  it  enlarged 
the  exemption  to  $4,000.  It  made  no  distinction  between 
income  received  from  salaries,  or  as  professional  com- 
pensation, and  income  derived  from  invested  securities. 
While  purporting  to  exempt  from  all  taxation  the  incomes 
of  charities,  it  yet  taxed  so  much  of  their  incomes  as  were 
derived  from  investments  in  corporate  shares.  It  taxed 
as  income  the  receipt  by  a  widow  or  an  orphan  of  that 
amount  of  insurance  upon  the  life  of  the  husband  or 
father,  which  might  possibly  constitute  the  whole  princi- 
pal fund  for  the  support  of  the  beneficiaries.  It  taxed  the 
interest  received  from  investments  in  state,  county,  and 
municipal  securities.  It  made  no  distinction  between  the 
rental  received  from  productive  land  and  moneys  received 
from  the  sale  of  minerals,  the  taking  away  of  which 
diminishes  the  principal.  In  taxing  the  rental  of  land,  it 
necessarily  taxed  the  land  itself.  It  taxed  profits  realized 
on  sales  of  real  estate  within  two  years,  and  it  forbade  a 
deduction  for  losses  on  like  sales.  It  allowed  a  deduction 


34  TAXATION. 

of  $4,000  from  the  income  of  an  unmarried  person  and  it 
permitted  only  one  exemption  to  that  amount  from  the 
aggregate  incomes  of  a  family  composed  of  parents, 
minor  children,  or  husband  and  wife.  It  taxed  without 
exemption  income  derived  from  corporate  securities  and  it 
permitted  the  exemption  in  the  case  of  incomes  otherwise 
derived.  It  vested  oppressive,  arbitrary,  and  uncontroll- 
able power  in  the  tax  collectors.  It  was  an  example  of  all 
that  a  tax  law  ought  not  to  be.  The  constitutionality  of 
that  act  came  before  the  Supreme  Court  of  the  United 
States  in  1895.64  It  was  argued  that  the  judgment  in 
Springer  v.  United  States  65  did  not  establish  any  rule  of 
property,  and  was,  therefore,  open  to  reconsideration; 
that  that  judgment  was  based  solely  on  the  dicta  in  Hylton 
v.  United  States ; 66  and  that,  even  if  those  dicta  were  bind- 
ing authorities,  capitation  taxes  were  in  reality  nothing 
else  than  taxes  imposed  upon  persons,  either  per  capita, 
or  graded  in  amount  according  to  the  possessions  or  in- 
come of  the  person ;  that  taxes  on  the  income  of  real  estate 
were  in  substance  taxes  on  the  real  estate  from  which  the 
income  was  derived;  and  that  taxes  on  the  income  from 
securities  issued  by  a  state,  or  by  any  political  sub-division 
thereof,  were  taxes  upon  agencies  of  state  government.  It 
was  argued  in  reply  that  the  dicta  in  Hylton 's  case  had 
not  only  been  recognized  by  jurists  and  commentators  as 
fixing  the  construction  of  the  Constitution,  but  had  also 
received  the  approval  of  the  court  in  Springer 's  case ;  that 
the  term  " capitation"  taxes  as  understood  by  the  framers 
of  the  Constitution,  meant  nothing  more  than  poll  taxes ; 
and  that  the  income  of  any  person,  from  whatever  source 
derived,  was  a  legal  entity,  entirely  distinct  from  its 
sources,  and,  therefore,  independently  taxable;  and  that 

64  Pollock  v.  F.  L.  &  T.  Co.,  157  U.  S.  429,  and,  on  rehearing,  158  id.  601. 
86 102  U.  S.  586. 
"3  Ball.  175. 


REQUIREMENT    OF    UNIFORMITY.  35 

with  the  policy  of  the  legislation  the  court  had  nothing  to 
do,  and  could  only  concern  itself  with  the  grounds  of  legal 
objection.  At  the  first  hearing  it  was  decided,  two  justices 
dissenting,  that  so  much  of  the  act  as  provided  for  levy- 
ing taxes  upon  incomes  derived  from  real  estate  was  in- 
valid, because  such  taxes  are  in  legal  effect  taxes  upon  real 
estate,  and  are,  as  such,  direct  taxes,  and  can  only  be  im- 
posed according  to  the  rule  of  apportionment,  and  that  so 
much  of  that  act  as  taxed  income  derived  from  invest- 
ments in  state,  county,  and  municipal  securities  was  invalid 
because  taxes  on  the  states  and  on  their  instrumentalities 
of  government.  The  justices  who  heard  the  argument 
were,  however,  equally  divided,  and,  therefore,  expressed 
no  opinion,  as  to  the  other  questions  raised.  Upon  the  re- 
hearing, the  court  decided,  four  justices  dissenting,  that, 
in  addition  to  the  points  decided  at  the  first  hearing,  a  tax 
on  an  individual  in  respect  of  his  income  derived  from 
real,  or  personal,  property  is  a  direct  tax,  and,  therefore, 
can  be  laid  only  under  the  rule  of  apportionment.  The 
opinion  of  the  profession  and  the  sober  second  thought  of 
the  country  have  approved  the  judgment  of  the  court.  The 
requirement  that  direct  taxes  must  be  "laid  in  proportion 
to  the  census  or  enumeration "  is  not  violated  by  a  statu- 
tory imposition  of  a  penalty  for  non-payment  of  the 
tax ; 67  and  the  amount  of  penalty  to  be  enforced  is  a 
matter  within  legislative  discretion.68 

Requirement  of  uniformity. 

19.  "All  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States/'69  The  requirement  of 
uniformity  means  that  there  must  be  geographical  uni- 
formity, or,  in  other  words,  that  "wherever  a  subject  is 

67  De  Treville  «.  Smalls,  98  U.  S.  517. 

88  W.  U.  T.  Co.  v.  Indiana,  165  U.  S.  304. 

69  Article  I,  Sec.  8,  Par.  1. 


36  TAXATION. 

taxed  anywhere,  the  same  must  be  taxed  everywhere 
throughout  the  United  States,  and  at  the  same  rate,"70 
and  taxation  is  uniform,  when  it  operates  with  the  same 
effect  in  all  places  where  the  subject  of  taxation  is  found, 
though  that  subject  be  not  equally  distributed  in  all  parts 
of  the  United  States.71  Subjects  of  taxation  may,  in  the 
discretion  of  Congress,  be  classified  without  impairment  of 
uniformity,  and,  while  the  theory  is  that  such  classification 
should  not  be  arbitrary,  but  must  be  based  upon  grounds 
of  real  distinction,  yet,  in  view  of  the  progressive  in- 
heritance tax  cases,72  it  would  be  difficult  to  make  a 
classification  sufficiently  arbitrary  to  justify  a  judicial  de- 
termination that  the  classification  violates  the  rule  of 
uniformity.  Sales  of  property  at  "any  exchange,  or 
board  of  trade,  or  other  similar  place"  may  be  taxed, 
when  sales  otherwise  made  are  not  taxed.73  Inheritances 
may  be  taxed,  even  though  the  rate  of  taxation  progress- 
ively increase  according  to  the  value  and  amount  of  the 
devise,  bequest,  or  distributive  share,  and  though  there  be 
discrimination  in  the  rate  as  between  lineals,  collaterals, 
and  strangers ;  and,  under  the  statute,74  the  subject  of  tax- 
ation is  not  the  corpus  of  the  estate,  but  the  amount  of  each 
particular  devise,  bequest,  or  distributive  share.75  Though 
free  from  objection  on  constitutional  grounds,  the  progres- 
sive inheritance  tax  law  is  a  very  objectionable  exercise 
of  legislative  discretion,  for  it  violates  the  fundamental 
American  doctrine  that  all  men  are  equal  before  the  law, 
and  that  equality  of  rights  implies  equality  of  obligations, 
and  it  is  of  dangerous  import  in  that  it  teaches  the  many 

70  Knowlton  v.  Moore,  178  U.  S.  41,  84,  per  White,  J. 

71  The  Head  Money  Cases,  112  U.  S.  580. 

"Knowlton  v.  Moore,  178  U.  S.  41;  Murdock  v.  Ward,  ibid.  139. 

78  Nicol  v.  Ames,  173  U.  S.  509. 

"Act  of  13th  June,  1898,  30  Stat.  448,  c.  448. 

76  Knowlton  v.  Moore,  178  U.  S.  41. 


TAXATION   IN   THE   TEBBITOEIES.  37 

to  expect  that  the  necessary  expenditures  of  government 
will  be  met  by  taxation  to  be  levied  on  the  few. 

Taxation  in  the  territories. 

20.  Long  ago  the  court  said  in  an  unanimous  judg- 
ment, 7G  pronounced  by  Marshall,  C.  J.,  "Does  this  term 
'  the  United  States, '  designate  the  whole,  or  any  particular 
portion,  of  the  American  Empire?  Certainly  this  ques- 
tion can  admit  of  but  one  answer.  It  is  the  name  given  to 
our  great  republic,  which  is  composed  of  states  and  terri- 
tories. The  District  of  Columbia,  or  the  territory  west 
of  the  Missouri,  is  not  less  within  the  United  States  than 
Maryland  or  Pennsylvania ;  and  it  is  not  less  necessary, 
on  the  principles  of  our  Constitution,  that  uniformity  in 
the  imposition  of  imposts,  duties,  and  excises,  should  be 
observed  in  the  one  than  in  the  other. ' '  This  expression 
of  opinion  by  the  greatest  of  the  judicial  commentators  on 
the  Constitution  was  not  a  dictum,  obiter  or  otherwise,  but 
was  a  statement  of  the  rule  of  law  which  was  applied  to, 
and  which  decided,  the  case  before  the  court.  Nevertheless 
that  case  has  been,  in  effect  though  not  in  form,  overruled, 
for  it  has  been  decided  by  a  divided  court,  four  justices  dis- 
senting and  the  five  justices  constituting  the  majority 
agreeing  only  in  the  judgment,  and  differing  widely  in  the 
reasoning  upon  which  it  rests,  that  the  Act  of  12th  April, 
1900,77  imposing  for  a  limited  period  certain  duties  upon 
importations  into  ports  of  the  United  States  from  Porto 
Eico,  and  into  ports  of  Porto  Eico  from  the  United  States, 
differing  from  the  duties  imposed  upon  importations  into 
the  United  States  from  foreign  countries,  is  constitutional, 
and  that,  from  and  after  the  taking  effect  of  that  act,  the 
duties  thereby  imposed  were  rightfully  collected.78  The 

76  Loughborough  v.  Blake,  5  Wheat.  317. 

77  31  Stat.  77,  c.  191. 

78Downes  v.  Bidwell,  182  U.  S.  244. 


38  TAXATION. 

judgment  in  that  case  is,  therefore,  authority  for  the 
proposition  that  after  a  territory  has  been  acquired  by 
treaty  and  has  so  far  become  a  part  of  the  United  States 
that  goods  brought  from  it  to  ports  of  the  United  States 
are  not  subject  to  the  duties  imposed  by  the  laws  of  the 
United  States  upon  importations  from  foreign  countries,79 
Congress  may,  by  subsequent  legislation,  organize  it  as  a 
territory  of  the  United  States,  and  by  the  same  act  impose 
upon  it  taxation  by  tariff  which  if  imposed  upon  any  state 
or  upon  any  territory  on  the  continent  of  North  America 
would  be  confessedly  unconstitutional,  because  a  violation 
of  the  rule  of  uniformity.  That  the  justices  who  con- 
curred in  the  judgment  did  not  agree  in  the  reasoning 
upon  which  that  judgment  is  based  does  not  detract  from 
the  authority  of  the  case  as  a  binding  precedent,  for,  as 
Marshall,  C.  J.,  said,80  "The  authority  of  a  decision  is  co- 
extensive with  the  facts  upon  which  it  is  founded. ' '  Mr. 
Justice  Brown  bases  the  judgment  upon  the  proposition 
that  in  the  uniformity  clause  the  words  "throughout  the 
United  States "  do  not  include  territories  acquired  by 
treaty  or  conquest,  except  in  so  far  as  Congress  shall 
direct.  Mr.  Justice  White,  Mr.  Justice  Shiras,  and  Mr. 
Justice  McKenna  base  it  on  the  theory  that  while  territory 
may  be  acquired  by  treaty,  and  thereby  become  the  prop- 
erty of  the  United  States,  it  does  not  become  territory  of 
the  United  States  subject  to  constitutional  restraints  upon 
congressional  action  until  it  shall  have  been  "  incorpor- 
ated "  with  the  United  States  by  an  act  of  Congress.  Mr. 
Justice  Gray,  concurring  in  the  judgment  of  affirmance, 
and  in  substance  concurring  in  the  opinion  of  Mr.  Justice 
White,  also  held  that  territory  acquired  by  conquest  or 
cession  does  not  become  domestic  territory  in  the  sense  of 

79  De  Lima  v.  Bidwell,   182  TJ.  S.   1;  Fourteen  Diamond  Kings,  Pepke, 
Claimant,  v.  TJ.  S.,  183  id.  176. 

^Ogden  v.  Saunders,  12  Wheat.  333. 


EXEMPTION    OF   STATE   AGENCIES.  39 

the  revenue  laws,  and  that  Congress  may  establish  a  tem- 
porary government  therefor,  "  which  is  not  subject  to  all 
the  restrictions  of  the  Constitution.7'  Mr.  Chief  Justice 
Fuller,  Mr.  Justice  Brewer,  and  Mr.  Justice  Peckham  dis- 
sented, and  held  that  the  powers  granted  by  the  Constitu- 
tion and  the  restrictions  upon  the  exercise  of  those  powers 
extend  to  every  part  of  the  territory  of  the  United  States. 
Mr.  Justice  Harlan  concurred  in  the  dissenting  opinion  of 
the  chief  justice,  and  held  that  "Congress  has  no  existence 
and  can  exercise  no  authority  outside  of  the  Constitution, ' ' 
and  he  agreed  with  the  chief  justice  in  his  opposition  to 
the  view  that  Porto  Rico  has  not  been  "incorporated"  into 
the  United  States. 

Exemption   of   state   agencies    from   taxation   by   the 
United  States. 

21.  The  United  States  cannot  tax  the  agencies  of  a  state, 
as,  for  instance,  the  salary  of  a  judicial  officer  of  a  state,81 
nor  the  revenue  of  a  municipal  corporation  derived  from 
its  loan  of  capital  to  a  railway ; 82  nor  may  it  tax,  in  the 
hands    of    an   individual,    the   income    from   municipal 
bonds.83     But  the  federal  government  may  tax  a  bequest 
to  a  municipality  for  public  purposes,  although  the  tax 
incidentally  reduces  the  amount  of  the  bequest  to  that 
municipality.84 

Charges  which  are  not  taxes  exempt  from  constitutional 
restraints. 

22.  The  duty  on  the  transportation  of  passengers  by 
sea  from  foreign  countries  imposed  by  the  United  States 

81  The  Collector  v.  Day,  11  Wall.  113. 
tt  U.  S.  v.  B.  &  O.  B.,  17  Wall.  322. 

88  Pollock  v.  P.  L.  &  T.  Co.,  158  U.  S.  601.     On  taxation  of  state  agencies 
in  general,  see  Ambrosini  v.  U.  S.,  187  id.  1. 

84  Snyder  v.  Bettman,  190  U.  S.  249.     Three  justices  dissented. 


40  TAXATION. 

in  the  exercise  of  the  power  of  regulating  commerce,  not 
being  in  its  nature  a  tax,  is  not  subject  to  the  constitutional 
restrictions  on  the  exercise  of  the  power  of  taxation ; 85 
and  the  same  view  has  been  taken  of  the  tax  imposed  by 
the  United  States  on  the  circulating  notes  of  state  banks 
for  the  purpose  of  preventing  the  circulation  of  any  other 
than  national  bank  notes.86 

Taxation  by  the  states. 

23.  A  state  may,  so  far  as  it  is  not  restrained  by  the 
Constitution,  tax  all  persons,  natural  or  corporate,  and  all 
property,  real  or  personal,  within  its  territory  and  sub- 
ject to  its  sovereignty,  and  may  regulate,  in  the  exercise 
of  legislative  discretion,  the  manner  of  levying  and  col- 
lecting its  taxes,87  and  the  United  States  cannot,  either 
by  legislative  or  judicial  action,  afford  any  relief  against 

86  The  Head  Money  Cases,  112  U.  S.  580. 

86  Veazie  Bank  v.  Fenno,  8  Wall.  533.     See  also  Twin  City  Bk.  v.  Nebeker, 
167  U.  S.  196. 

87  Witherspoon  v.  Duncan,  4  Wall.  210;  Spencer  v.  Merchant,  125  U.  S. 
345;  P.  P.  C.  Co.  v.  Pennsylvania,  141  id.  18;  W.  U.  T.  Co.  v.  Indiana, 
165  id.  304;  A.  Ex.  Co.  v.  Ohio,  166  id.  185;  Savings  Society  v.  Multnomah 
County,  169  id.  421;  Magoun  v.  I.  T.  &  S.  Bank,  170  id.  283;  King  v. 
Mullins,  171  id.  404;  New  Orleans  v.  Stempel,  175  id.  309;  Bristol  v.  Wash- 
ington County,  177  id.  133;  Orr  v.  Gilman,  183  id.  278;  F.  C.  &  P.  E.  v. 
Reynolds,  ibid.  471;  League  v.  Texas,  184  id.  156;  Blackstone  v.  Miller,  188 
id.  189;  Board  of  Assrs.  v.  C.  N.  D'E.,  191  id.  388;  Carstairs  v.  Cochran, 
193  id.  10.     See  also  opinion  of  Brown,  J.,  in  Eidman  v.  Martinez,  184  id. 
578.     A  state  may  tax  an  interstate  railway,   car,   express,  or  telegraph 
company  upon  its  property  within  the  state,  finding  the  value  of  the  whole 
property,  both  tangible  and  intangible,  of  the  corporation,  which  is  used 
in  its  business,  and  then  computing  the  value  of  the  line  within  the  state 
by  its  relative  length  to  the  whole:    P.,  C.,  C.  &  St.  L.  By.  v.  Backus,  154 
U.  S.  421;  C.,  C.,  C.  &  St.  L.  Ey.  v.  Backus,  ibid.  439;  P.  P.  C.  Co.  v.  Penn- 
sylvania, 141  id.  18;  A.  E.  T.  Co.  v.  Hall,  174  id.  70;  U.  E.  T.  Co.  v.  Lynch, 
177  id.  149;  A.  Ex.  Co.  v.  Ohio,  165  id.  194,  166  id.  185;  A.  Ex.  Co.  v. 
Kentucky,  166  id.  171;  W.  U.  T.  Co.  v.  Massachusetts,  125  id.  530;  W.  U. 
T.  Co.  v.  Taggart,  163  id.  1 ;  and  see  W.  U.  T.  Co.  v.  Missouri,  190  id.  412. 
But  in  estimating  the  value  of  the  whole  property  the  state  may  not  include 
property  in  another  state  which  is  not  used  by  the  company  in  its  business: 
Fargo  v.  Hart,  193  id.  490. 


TAXATION  BY  THE  STATES.  41 

" state  taxation,  however  unjust,  oppressive,  or  onerous," 
so  long  as  that  taxation  "does  not  entrench  upon  the 
legitimate  authority  of  the  Union,  or  violate  any  right 
recognized  or  secured  by  the  Constitution  of  the  United 
States.  "88 

Under  the  general  rule  which  permits  a  government 
to  tax  all  persons  and  property  within  its  jurisdiction, 
the  states  may  impose  a  succession  duty  on  the  devolu- 
tion of  title  to  real  estate  from  their  citizens  to  alien  non- 
residents ; 89  they  may  tax  descents  and  inheritances,  and 
they  may  classify  and  vary  the  rate  of  taxation  with 
reference  to  lineal  and  collateral  relationship,  strangers, 
and  the  amount  of  the  legacy ; 90  they  may  tax  goods  and 
chattels  which  are  actually  within  the  state  when  assessed 
for  taxation,  though  owned  by  a  non-resident ; 91  they  may 
tax  mortgages  of  lands  within  their  limits,  and  notes 
secured  by  such  mortgages,  although  held  by  residents  of 
other  states ;  92  they  may  tax  the  transfer  by  will  of  money 
deposited  within  the  state  by  a  non-resident;93  and,  for 

88  Providence  Bk.  v.  Billings,  4  Pet.  563;  Carpenter  <v.  Pennsylvania,  17 
How.  456 ;  St.  Louis  v.  W.  F.  Co.,  11  Wall.  423 ;  The  State  Tax  on  Foreign- 
held  Bonds,  15  id.  300;  Kirtland  v.  Hotchkiss,  100  U.  S.  491,  498;  M.  G. 
Co.  v.  Shelby  County,  109  id.  398;  Magoun  v.  I.  T.  &  S.  Bank,  170  id.  283; 
Orr  v.  Oilman,  183  id.  278;  Blackstone  v.  Miller,  188  id.  189.  The  Four- 
teenth Amendment  does  not  compel  the  states  to  adopt  an  iron  rule  of 
equal  taxation:  B.  G.  E.  v.  Pennsylvania,  134  U.  S.  232;  P.  Ex.  Co.  v. 
Seibert,  142  id.  339;  Jennings  v.  C.  E.  C.  Co.,  147  id.  147;  Giozza  v. 
Tiernan,  148  id.  657;  Merchants  &  Manufacturers'  Bk.  v.  Pennsylvania, 
167  id.  461;  Magoun  v.  I.  T.  &  S.  Bank,  170  id.  283;  Clark  v.  TitusviUe, 
184  id.  329;  Kidd  v.  Alabama,  188  id.  730.  See  also  F.  C.  &  P.  B.  v. 
Eeynolds,  183  id.  471;  Connolly  v.  U.  S.  P.  Co.,  184  id.  540;  Missouri  v. 
Dockery,  191  id.  165. 

89Mager  v.  Grima,  8  How.  490. 

"Magoun  v.  I.  T.  &  S.  Bank,  170  U.  S.  283.  See  also  Billings  v. 
Illinois,  188  id.  97. 

91  Coe  v.  Enrol,  116  U.  S.  517. 

n  Savings  Society  v.  Multnomah  County,  169  U.  S.  421 ;  New  Orleans  v. 
Stempel,  175  id.  309;  Bristol  v.  Washington  County,  177  id.  133.  See  also 
Board  of  Assessors  v.  C.  N.  D'E.,  191  id.  388. 

98  Blackstone  v.  Miller,  188  U.  S.  189. 


42  TAXATION. 

purposes  of  taxation,  the  situs  of  a  debt  being  the  resi- 
dence of  the  creditor,  the  state  may  include  in  the  taxable 
property  of  a  resident  so  much  of  the  registered  public 
debt  of  another  state  as  such  resident  may  hold,  although 
the  debtor  state  may  either  exempt  it  from  taxation  or 
actually  tax  it.94  On  the  same  principle,  a  state  may  tax 
her  resident  citizens  for  debts  due  to  them  by  a  non- 
resident and  secured  by  his  bond  and  also  by  his  deed  of 
trust  or  mortgage  of  real  estate  situated  in  another  state.95 
As,  until  the  period  of  distribution  arrives,  the  law  of  a 
decedent's  domicile  attaches  to  his  personal  property,  that 
property  is  subject  to  a  state  collateral  inheritance  tax, 
though  bequeathed  by  his  will  to  non-resident  legatees.96 
But  the  laws  of  a  state  can  have  no  extra-territorial  effect, 
and,  therefore,  a  state  cannot  tax  a  franchise  granted  by, 
and  exercised  in,  another  state,97  nor  can  it,  as  a  means 
of  taxing  corporate  bonds  held  by  non-residents,  authorize 
the  corporation  to  retain  from  the  interest  due  on  its 
bonds  the  amount  of  the  tax.98  Nor  can  a  state  tax,  in  the 
hands  of  a  non-resident  holder,  corporate  bonds  issued 
under  a  mortgage  of  a  railway  formed  by  the  consolida- 
tion of  corporations,  incorporated  by  the  state,  and  other 
corporations  incorporated  by  another  state,  and  encum- 
bering by  a  consolidated  and  non-severable  lien  prop- 
erty which  is  not  within  the  jurisdiction  of  the  taxing 
state.99  Nor  can  a  state  compel  a  foreign  corporation  to 
collect  its  taxes  by  retaining  a  portion  of  the  interest  due 
upon  scrip  or  bonds  held  by  citizens  of  the  taxing  state, 

94  Bonaparte  v.  Tax  Court,  104  U.  S.  592. 

95  Kirtland  v.  Hotchkiss,  100  U.  S.  491. 

96  Carpenter  v.  Pennsylvania,  17  How.  456 ;  U.  S.  v.  Perkins,  163  U.  S.  625. 

97  L.  &  J.  F.  Co.  v.  Kentucky,  188  U.  S.  385. 

98  State  Tax  on  Foreign-held  Bonds,  15  Wall.  301 ;  cf.  Savings  Society  v. 
Multnomah  County,  169  U.  S.  421,  428. 

99  E.  Co.  v.  Jackson,  7  Wall.  262. 


EXPBESSED   BESTRAINTS.  43 

when  the  payment  is  made  by  the  foreign  corporation  in 
its  home  state.100  A  state  may  tax  corporate  bonds  at 
their  face,  instead  of  their  market,  value.1 

Expressed  restraints  upon  state  taxation. 

24.  Section  10  of  Article  I  of  the  Constitution  declares, 
that  "no  state  shall,  without  the  consent  of  the  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws ;  and  the  net  produce  of  all  duties  and  imposts, 
laid  by  any  state  on  imports  or  exports,  shall  be  for  the 
use  of  the  treasury  of  the  United  States;  and  all  such 
laws  shall  be  subject  to  the  revision  and  control  of  the 
Congress.  No  state  shall,  without  the  consent  of  the  Con- 
gress, lay  any  duty  of  tonnage/'  The  nature  and  effect 
of  the  restrictions  upon  the  taxing  power  of  the  states 
imposed  by  these  constitutional  provisions  are  more  fully 
discussed  in  Chapter  IV,  and  it  is  sufficient  to  say  in  this 
connection  that  a  state  cannot  require  importers  of  foreign 
goods  by  the  bale  or  package  and  wholesale  vendors  of 
such  goods  to  pay  a  license  fee ; 2  nor  can  a  state  impose  an 
ad  valorem  tax  on  imported  goods  remaining  in  their  or- 
iginal cases  in  the  hands  of  the  importer;3  nor  can  a 
state  tax  an  auctioneer's  sales  of  imported  goods  for  ac- 
count of  the  importers ; 4  but  a  state  may  prohibit  the  ex- 
portation of  tobacco  grown  within  its  territory,  save  after 

100  N.  Y.,  L.  E.  &  W.  E.  v.  Pennsylvania,  153  U.  S.  628;  D.  &  H.  C. 
Co.  v.  Pennsylvania,  156  id.  200. 

JB.  G.  E.  v.  Pennsylvania,  134  U.  S.  222;   Jennings  v.  C.  E.  C.  Co., 
147  id.  147. 

2  Brown  v.   Maryland,    12   Wheat.   419.     Imports,   in   the   constitutional 
sense,  embrace  only  goods  brought  from  a  foreign  country:     A.  S.  &  W. 
Co.  v.  Speed,  192  U.  S.  500. 

3  Low  v.  Austin,  13  Wall.  29 ;  cf.  P.  &  S.  C.  Co.  v.  Bates,  156  id.  577. 

4  Cook  v.  Pennsylvania,  97  U.  S.  566. 


44  TAXATION. 

inspection  and  on  payment  of  a  tax.5     A  state  cannot  tax 
ships  upon  their  tonnage.6 

Implied  restraint  upon  state  taxation  resulting  from 
the  federal  supremacy. 

25.  The  supremacy  of  the  United  States  under  the  Con- 
stitution impliedly  limits  to  some  extent  the  exercise  by 
the  states  of  the  power  of  taxation.  Thus,  a  state  cannot 
tax  the  official  salary  of  an  officer  of  the  United  States,  as, 
for  instance,  an  officer  in  the  revenue  marine  service ; 7  nor 
can  a  state  tax  a  telegraph  company  upon  messages  sent 
by  officers  of  the  United  States  on  public  business ; 8  nor 
can  a  state  authorize  municipal  taxation  of  the  bonds 
issued  by  the  government  of  the  United  States  for  money 
loaned  to  it ; 9  nor  can  a  state  tax  the  notes  of  the  United 
States ; 10  nor  can  a  state  tax  so  much  of  the  capital  of  a 
state  bank  as  is  invested  in  the  bonds  of  the  United  States, 
that  capital  being  assessed  either  at  its  actual  value,11  or 
at  a  valuation  equal  to  the  amount  paid  in,  or  secured  to 
be  paid  in.12  But  no  one  will  be  allowed  to  evade  state 
taxation  of  his  money  on  deposit  by  making  a  temporary 
investment  of  that  money  in  the  notes  of  the  United 
States.13  A  corporation  claiming  an  exemption  from 
state  taxation  by  reason  of  the  investment  of  its  surplus 
funds  in  the  legal  tender  notes  of  the  United  States  has, 


5  Turner  v.  Maryland,  107  IT.  S.  38. 

'State  Tonnage  Tax  Cases,  12  Wall.  204;  Steamship  Co.  v.  Portwardens, 
6  id.  31;  Peete  v.  Morgan,  19  id.  581;  Cannon  v.  New  Orleans,  20  id. 
577;  I.  S.  S.  Co.  v.  Tinker,  94  U.  S.  238. 

7  Dobbins  v.  Commissioners,  16  Pet.  435. 

8  W.  U.  T.  Co.  v.  Texas,  105  U.  S.  460. 

"Weston  v.  Charleston,  2  Pet.  449;  Banks  v.  Mayor,  7  Wall.  16;  cf. 
Plummer  v.  Coler,  178  U.  S.  115. 

10  Bank  v.  Supervisors,  7  Wall.  26. 

11  People  v.  Commissioners  of  Taxes,  2  Black,  620. 

12  Bank  Tax  Case,  2  Wall.  200. 

u  Shotwell  v.  Moore,  129  U.  S.  590. 


IMPLIED   RESTRAINTS. 


45 


of  course,  the  burden  of  proving  the  fact  on  which  it  rests 
its  claim  for  exemption.14  A  state  tax  of  a  certain  per- 
centage of  the  total  amount  of  the  deposits  on  a  given 
day,15  or  of  the  average  amount  of  the  deposits  for  a  fixed 
period,16  of  a  saving  fund  society  chartered  by  the  state,  a 
state  tax  of  a  certain  percentage  upon  the  excess  of  the 
market  value  of  the  shares  of  the  capital  of  a  corporation 
chartered  by  a  state  over  and  above  the  value  of  its  real 
estate  and  machinery,17  and  a  state  tax,  measured  by  divi- 
dends, upon  a  foreign  corporation  doing  business  within 
the  state,18  are,  in  each  case,  a  tax  on  the  franchise  and 
not  on  the  property  of  the  corporation,  and  the  corpora- 
tion cannot  claim  exemption  from  such  taxation  by  reason 
of  the  investment,  in  the  case  of  the  saving  funds,  of  their 
deposits,  and  in  the  case  of  the  other  corporations,  of  their 
capital  and  assets,  in  the  bonds  of  the  United  States.  So 
also  a  state,  in  taxing  the  shares  of  stock  of  a  trust  com- 
pany, may  include  in  the  valuation  of  the  shares  the 
amount  of  the  capital  stock  of  the  company  which  is  in- 
vested in  the  bonds  of  the  United  States.19  A  state  may 
tax  a  legacy  consisting  of  bonds  of  the  United  States  issued 
under  a  statute  declaring  them  to  be  exempt  from  taxation 
in  any  form,20  and  it  may  tax  bequests  to  the  United 
States.21  It  cannot  tax  lands  held  in  severalty  by  mem- 
bers of  an  Indian  tribe  and  protected  by  treaties  between 
the  United  States  and  the  tribe,22  and  it  cannot  tax  lands 
held  by  the  United  States  in  trust  for  members  of  an 


14  C.  &  B.  Co.  v.  New  Orleans,  99  U.  S.  97. 
"Society  for  Savings  v.  Coite,  6  Wall.  594. 
"Provident  Inst.  v.  Massachusetts,  6  Wall.  611. 

17  Hamilton  Co.  v.  Masachusetts,  6  Wall.  632. 

18  Home  Ins.  Co.  v.  New  York,  134  U.  S.  594. 
18  C.  T.  Co.  v.  Lander,  184  U.  S.  111. 
20Plummer  v.  Coler,  178  U.  S.  115. 

21  U.  S.  v.  Perkins,  163  U.  S.  625. 

22  The  Kansas  Indians,  5  Wall.  737 ;  The  New  York  Indians,  ibid.  761. 


46  TAXATION. 

Indian  tribe,  or  improvements  upon  such  lands,  or  prop- 
erty given  to  the  Indians  by  the  United  States,  when  such 
taxation  is  prohibited  by  federal  statute.23  It  may,  by 
act  of  Congress,  tax  surveyed  but  unpatented  lands  of  the 
United  States  included  within  a  railroad  land  grant.24 
Lands  granted  by  act  of  Congress  to  a  state,  to  be  held  by 
it  to  aid  in  the  construction  of  a  railway,  though  not  tax- 
able by  the  state  when  held  by  it  as  trustee,  are  taxable  by 
it  after  their  conveyance  to  the  railway,25  and,  of  course,  in 
the  case  of  lands  ceded  by  a  state  to  the  United  States  for 
the  construction  of  a  railway,  with  an  express  reservation 
of  the  state's  right  of  taxation, the  state  may  lawfully  exer- 
cise that  right,26  but  land  within  a  state,  which,  under  laws 
of  Congress  for  the  collection  of  taxes  due  to  the  United 
States,  has  been  sold  for  non-payment  of  such  taxes,  and  at 
the  sale  thereof  purchased  by  the  United  States  and  after- 
wards sold  by  the  United  States  to  a  third  party,  or 
redeemed  by  the  owner,  is  exempt  from  state  taxation 
during  the  period  of  federal  ownership  thereof.27  Al- 
though the  title  to  land  remain  in  the  United  States,  ore 
dug  therefrom  under  a  mineral  claim  is,  as  the  personal 
property  of  the  claimant,  subject  to  state  taxation.28  The 
exemption  of  federal  agencies  from  state  taxation  is  de- 
pendent, not  on  the  fact  of  the  agency,  nor  on  the  character 
of  the  agents,  nor  on  the  mode  of  their  appointment,  but 
on  the  effect  of  state  interference  in  depriving  the  agent  of 
power  to  serve  the  government  of  the  United  States,  or  in 
hindering  the  agent  in  the  efficient  exercise  of  that 

28  U.  S.  v.  Bickert,  188  U.  S.  432. 

24  Act  of  10th  July,  1886,  24  Stat.  143,  c.  764;  C.  P.  E.  v.  Nevada,  162 
U.  S.  512;  N.  P.  E.  v.  Myers,  172  id.  589. 
26  Tucker  v.  Ferguson,  22  Wall.  527. 
26  F.  L>.  E.  v.  Lowe,  114  U.  S.  525. 
"Van  Brocklin  v.  Tennessee,  117  U.  S.  151. 
28  Forbes  v.  Gracey,  94  U.  S.  762. 


IMPLIED   RESTRAINTS.  47 

power.29  A  state  may,  therefore,  tax  the  property,  real 
and  personal,  of  a  railroad,  which  has  been  chartered  by 
act  of  Congress,  is  subject  to  a  lien  securing  its  debt  to  the 
United  States,  and  is  used  as  a  federal  agency  for  the 
transportation  of  mails,  soldiers,  government  supplies, 
and  munitions  of  war ; 30  and,  it  would  seem,  on  the  prin- 
ciple of  that  case,  that  a  state  may  tax  the  property  of  any 
federal  agency,  wherever  such  taxation  does  not  impair 
the  efficiency  of  the  agency  in  the  performance  of  its  duty 
to  the  government  of  the  United  States.  The  federal 
supremacy  forbids  a  state  so  to  tax  the  transit  of  passen- 
gers through  the  state  by  the  ordinary  modes  of  travel,  as 
to  impede  their  approach  to  the  seat  of  government  of  the 
United  States,  the  ports  of  entry  through  which  commerce 
is  conducted,  and  the  various  federal  offices  in  the  states.31 
The  supremacy  of  the  United  States  does  not  involve  an 
exemption  from  state  taxation  of  property  which  has  been 
acquired  by  the  exercise  of  an  exclusive  privilege  granted 
by  the  United  States,  when  there  is  no  relation  of  agency 
between  the  United  States  and  the  grantee;  thus  letters 
patent,  granted  by  the  United  States,  do  not  exempt  from 
state  taxation  the  tangible  property  in  which  the  invention 
or  discovery  is  embodied.32  Nor  does  a  license  granted, 
on  payment  of  a  license  fee,  by  the  United  States  under  its 
internal  revenue  statutes  to  a  wholesale  liquor  dealer  in 
a  state  exempt  the  dealer,  or  his  business,  or  his  goods 
from  state  control,  regulation,  or  taxation.33 

29  U.  P.  E.  v.  Peniston,   18  Wall.  5;   National  Bank  v.   Commonwealth, 
9   id.    353;    Thomson   v.   P.   E.,   ibid.    579;    C.    P.   E.    v.    California,    162 
U.  S.  91. 

30  U.  P.  E.  v.  Peniston,  18  Wall.  5. 

81  Crandall  v.  Nevada,  6  Wall.  35. 

82  Webber  v.  Virginia,  103  U.  S.  344. 

33McGuire  v.  The  Commonwealth,  3  Wall.  387;  Pervear  v.  The  Common- 
wealth, 5  id.  475.     See  also  Plumley  v.  Massachusetts,  155  U.  S.  461. 


48  TAXATION. 

Taxation  of  national  banks. 

26.  A  state  cannot  tax  the  operations  of  banks  incor- 
porated by  the  government  of  the  United  States  as  fiscal 
agencies.34  Nor  can  a  state  tax  the  assets  of  an  insolvent 
national  bank  in  the  hands  of  a  receiver  appointed  under 
the  provisions  of  the  national  banking  laws.35  Of  course, 
when  Congress  licenses  state  taxation  of  agencies  of  the 
government  of  the  United  States,  such  taxation  is  per- 
missible within  the  limits  imposed  by  the  terms  of  the 
license ; 36  thus  in  the  case  of  national  banks,  state  tax- 
ation is  by  Section  41  of  the  Act  of  3d  June  1864,37  per- 
mitted as  to  the  shares  in  any  bank,  when  "included  in  the 
valuation  of  the  personal  property  of  the  owner  or  holder 
of  such  shares,  in  assessing  taxes  imposed  by  authority  of 
the  state  within  which  the  association  is  located,  .  .  . 
subject  only  to  the  restrictions,  that  the  taxation  shall  not 
be  at  a  greater  rate  than  is  assessed  upon  other  moneyed 
capital  in  the  hands  of  individual  citizens  of  such  state, 
and  that  the  shares  of  any  national  banking  association 
owned  by  non-residents  of  any  state  shall  be  taxed  in  the 
city  or  town  where  the  bank  is  located,  and  not  elsewhere. ' ' 
The  states  may,  therefore,  tax  shareholders  in  national 
banks  within  the  limits  of  this  license,38  without  regard  to 
the  investment  of  all  or  any  part  of  the  capital  of  the  banks 
in  United  States  securities.  The  National  Bank  Act  of 
3d  June,  1864,39  had  imposed  a  further  restriction  on  state 
taxation  of  national  bank  shares,  declaring  that  such  tax 

"McCulloch  v.   The  State  of  Maryland,  4  Wheat.  316;  Osborn  v.   The 
Bank  of  the  U.  S.,  9  id.  738. 

85  Eosenblatt  v.  Johnston,  104  U.  8.  462. 

86  Van  Allen  v.  The  Assessors,  3  Wall.  573 ;  People  v.  The  Commissioners, 
4  id.  244.     See  also  C.  T.  Co.  v.  Lander,  184  U.  S.  111. 

8T 15  Stat.  34,  Eev.  Stat.,  sec.  5219. 

88  National  Bank  v.  The  Commonwealth,  9  Wall.  353 ;  People  v.  Commis- 
sioners, 4  id.  244;  Van  Allen  v.  The  Assessors,  3  id.  573. 
89 13  Stat.  111. 


TAXATION    OF    NATIONAL   BANKS. 


49 


i  i  shall  not  exceed  the  rate  imposed  upon  the  shares  in  any 
of  the  banks  organized  under  the  authority  of  the  state, ' ' 
but  in  the  re-enactment  of  this  statute  in  1868,40  and  in  the 
Revised  Statutes,41  this  condition  was  omitted.  Under  the 
Act  of  1864  it  was  held  that  a  state  could  not  tax  shares  in 
national  banks,  when  it  taxed  the  capital  of  state  banks, 
exempting  so  much  thereof  as  was  invested  in  the  bonds  of 
the  United  States,  and  failed  to  tax  the  shares  of  state 
banks.42  It  was  also  held  that  the  limitation  upon  dis- 
parity of  state  taxation  imposed  by  the  Act  of  1864  is  not 
overstepped  by  a  state  which,  having  only  two  banks  of 
issue  and  circulation,  and  having  by  contract  bound  itself 
not  to  tax  these  banks  beyond  a  certain  limit,  but  having 
numerous  banks  of  deposit,  which  do  not  issue  circulation, 
taxes  generally  and  equally  all  shares  of  stock  in  banks 
and  incorporated  companies  doing  business  in  the  state.43 
The  terms  of  Section  5219  of  the  Revised  Statutes  show 
clearly  that  Congress  did  not  intend  to  curtail  the  taxing 
power  of  the  states  over  national  bank  shares  as  entities 
distinct  from  the  capital  of  the  banks,  and  as  the  property 
of  persons  subject  to  state  jurisdiction,  but  that  it  was  in- 
tended to  guard  the  national  banks  against  unfriendly 
discrimination  by  the  states  in  the  exercise  of  that  taxing 
power.44  The  phrase  "  moneyed  capital "  includes  capital 
employed  in  national  banks  and  capital  employed  by  in- 
dividuals for  the  making  of  profit  by  its  use,  but  it  does 
not  include  non-competitive  capital.45  The  exemption 

40 15  Stat.  34. 

41  Section  5219. 

42  Van  Allen  v.  The  Assessors,  3  Wall.  573 ;  Bradley  v.  The  People,  4  id. 
459. 

43Lionberger  v.  Eouse,  9  Wall.  468. 

44  Adams  v.  Nashville,  95  U.  S.  19;  Mercantile  Bank  v.  New  York,  121 
id.  138.     See  the  opinion  of  Miller,  J.,  in  Davenport  Bank  v.  Davenport, 
123  id.  83. 

45  Mercantile  Bank  v.  New  York,  121  U.  S.  138;   Palmer  v.  McMahon, 
133  id.  660;  National  Bank  v.  Chapman,  173  id.  205. 


50  TAXATION. 

from  state  taxation  of  some  but  not  all  of  the  moneyed 
capital  in  the  state  is  not  a  discrimination  against  national 
bank  shares  within  the  terms  of  the  license;  as,  for 
instance,  in  the  case  of  exemption  of  "all  mortgages, 
judgments,  recognizances,  and  moneys  owing  upon 
articles  of  agreement  for  the  sale  of  real  estate;'*46 
or  of  deposits  in  savings  banks,  shares  in  trust  companies, 
and  shares  in  other  moneyed  or  stock  corporations  char- 
tered by  the  state  and  deriving  an  income  or  profit  from 
the  use  of  their  capital  or  otherwise.47  Nor  is  there  any 
inequality  of  taxation  or  unfriendly  discrimination  as 
against  national  bank  shares,  in  the  exemption  by  a  state 
of  that  which  it  cannot  lawfully  tax,  such  as  shares  owned 
by  its  residents  in  the  capital  stock  of  foreign  corpora- 
tions,48 or  in  the  exemption  of  that  which  is  not  a  subject 
of  taxation  by  the  United  States,  such  as  the  bonds  of  a 
municipal  corporation  created  by  the  state ; 49  but  where  a 
very  material  part  of  the  other  moneyed  capital  of  a  state 
in  the  hands  of  individual  citizens  within  the  state  is  ex- 
empted from  state  taxation,  the  state  cannot  tax  the  shares 
of  national  banks.50  State  statutes  taxing  personal  prop- 
erty, including  national  bank  shares,  and  permitting  the 
party  taxed  to  deduct  his  just  debts  from  the  valuation  of 
his  personal  property  other  than  national  bank  shares,  tax 
such  shares  at  a  greater  rate  than  other  moneyed  capital, 
and,  therefore,  are  not  effective  under  the  terms  of  the 
license  given  by  Congress ; 51  but  in  the  case  of  a  national 

"Hepburn  v.  The  School  Directors,  23  WaU.  480. 

47  Mercantile  Bank  v.  New  York,  121  U.  S.  138;  Bank  of  Eedemption  v. 
Boston,    125   id.    60;    Palmer   v.   McMahon,    133   id.    660;    First   National 
Bank  v.  Ayers,  160  id.  660;  Aberdeen  Bank  v.  Chehalis  County,  166  id. 
440;  National  Bank  v.  Chapman,  173  id.  205. 

48  Mercantile  Bank  v.  New  York,  121  U.  S.  138,  162. 
"Mercantile  Bank  v.  New  York,  121  U.  S.  138,  162. 

°°Boyer  v.  Boyer,   113  U.  S.   689;    cf.   Commercial  Bank  v.   Chambers, 
182  id.  556. 
"People  v.  Weaver,  100  U.  S.  539;  Supervisors  v.  Stanley,  105  id.  305; 


TAXATION    OF   NATIO1TAL  BANKS.  51 

bank  shareholder  who  has  no  just  debts  to  deduct,  the 
taxing  law  is  valid  and  operative.52  A  state  may,  under 
the  act  of  Congress,  tax  the  shares  of  a  bank  located  within 
its  jurisdiction  without  regard  to  the  non-resident  or  resi- 
dent ownership  of  such  shares,53  and  the  shares  may  be 
assessed  for  purpose  of  state  taxation  at  their  market 
value,  though  that  exceed  their  par  value.54  But  state 
taxation  of  national  bank  shares  must  be  uniform  and 
equal,  and  when  a  system  of  valuation  for  taxation  pur- 
poses intended  to  operate  unequally  is  adopted  by  the 
state  authorities  whose  duty  it  is  to  make  the  assessment, 
equity  may  properly  interfere,  on  payment  of  the  proper 
tax,  to  enjoin  the  collection  of  the  illegal  excess.55 
Where  a  state  has  provided  a  mode  for  the  correction  of 
error  in  the  assessment  of  property  for  purposes  of  tax- 
ation, a  party  aggrieved  by  an  over- valuation  of  his  prop- 
erty cannot  maintain  an  action  at  law  to  recover  the 
alleged  illegal  excess  of  taxes  paid  by  him,  for  the  official 
action  of  the  revising  authority  is  judicial  in  character, 
and  cannot  be  collaterally  impeached.56  Only  the  shares 
of  stock  and  the  real  estate  of  a  bank  may  be  taxed.57  A 
state  may  lawfully  require  a  national  bank  to  act  as  the 
agent  of  the  state  in  collecting  from  the  shareholders  of 
the  bank  the  tax  imposed  by  the  state  within  the  limits 

Hills  v.  Exchange  Bank,  ibid.  319;  Evansville  Bank  v.  Britton,  ibid.  322; 
Whitbeck  v.  Mercantile  Bank,  127  id.  193;  Palmer  v.  McMahon,  133 
id.  660. 

52  Supervisors  v.  Stanley,  105  U.  S.  305. 

58Tappan  v.  Merchants'  Nat.  Bank,  19  Wall.  490. 

54  Hepburn  v.  The  School  Directors,  23  Wall.  480 ;  People  v.  Commissioners 
of  Taxes,  94  U.  S.  415. 

65Cummings  v.  National  Bank  of  Toledo,  101  U.  S.  153;  Pelton  v. 
National  Bank,  101  id.  143;  People  v.  Weaver,  100  id.  539;  Whitbeck  v. 
Mercantile  Bank,  127  id.  193. 

08  Stanley  v.  Supervisors,  121  U.  S.  535. 

"Owensboro  Nat.  Bank  v.  Owensboro,  173  U.  S.  664;  First  Nat.  Bank 
of  Louisville  v.  Louisville,  174  id.  438. 


52  TAXATION. 

permitted  by  the  act  of  Congress.58  A  state  may  also, 
under  a  penalty  for  his  non-performance  of  the  duty,  re- 
quire a  cashier  of  a  national  bank  to  furnish  to  the  state 
authorities  a  list  of  the  names  and  respective  holdings  of 
the  shareholders  of  his  bank.59 

State  taxation  as  affected  by  the  prohibition  of  the  im- 
pairment of  the  obligation  of  contracts. 

27.  The  constitutional  prohibition  of  the  enactment  by 
the  states  of  laws  impairing  the  obligation  of  contracts 
affects  to  some  extent  the  exercise  by  the  states  of  the 
power  of  taxation.  While,  as  a  general  rule,  the  states 
may,  in  the  exercise  of  legislative  discretion,  either  tax 
property  or  exempt  it  from  taxation,  yet  contracts 
of  exemption  from  state  taxation,  not  in  terms  con- 
travening federal 60  or  state 61  constitutional  prohibitions, 
and  contained  in  corporate  charters 62  or  stipulated  by 
express  agreement,63  if  supported  by  an  adequate  con- 
sideration, constitute  contracts  so  binding  upon  the  state, 
that  their  obligation  is  not  to  be  permitted  to  be  impaired 
by  a  subsequent  legislative  repeal  of  the  charter,  or  by  an 
imposition  of  a  rate  of  taxation  inconsistent  with  the 
state's  contract.64  But  there  cannot  be  implied  from  the 

68  Aberdeen  Bank  v.  Chehalis  County,  166  U.  S.  440;  Merchants  & 
Manufacturers'  Bank  v.  Pennsylvania,  167  id.  461. 

5»Waite  v.  Dowley,  94  U.  S.  527. 

60  People  v.  Commissioners  of  Taxes,  94  U.  S.  415. 

61 E.  Cos.  v.  Gaines,  97  U.  S.  697;  Trask  v.  Maguire,  18  Wall.  391; 
Morgan  v.  Louisiana,  93  U.  S.  217;  Shields  v.  Ohio,  95  id.  319;  P.  I.  Co. 
v.  Tennessee,  161  id.  193;  Stearns  v.  Minnesota,,  179  id.  223,  241. 

62  Jefferson  Branch  Bank  v.  Skelly,  1  Bl.  436;  M.  &  O.  E.  v.  Tennessee, 
153  U.  S.  486;  Citizens'  Bk.  v.  Parker,  192  id.  73. 

68  New  Jersey  v.  Wilson,  7  O.  164;  New  Jersey  v.  Yard,  95  U.  S.  104; 
Wells  v.  Savannah,  181  id.  531. 

"Jefferson  Branch  Bank  v.  Skelly,  1  Bl.  436;  W.  &  E.  E.  v.  Eeid,  13 
Wall.  264;  E.  &  G.  E.  v.  Eeid,  ibid.  269;  Chicago  v.  Sheldon,  9  id.  50; 
P.  E.  v.  Maguire,  20  id.  36;  University  v.  People,  99  U.  S.  309;  Asylum  v. 
New  Orleans,  105  id.  362;  W.  &  W.  E.  v.  Alsbrook,  146  id.  279;  M.  &  O. 


CONTRACTUAL   EXEMPTION. 


53 


grant  of  a  charter  an  exemption  of  the  corporate  franchise 
or  property  from  state  taxation,65  and  the  imposition  in  a 
charter  of  a  specific  form  or  rate  of  taxation  is  not,  in  the 
absence  of  an  express  contract  of  exemption  from  other 
taxation,  to  be  construed  as  an  implied  exemption  from 
such  other  taxation,66  and  contracts  of  exemption  from 
state  taxation,  when  expressly  made,  are  to  be  strictly  con- 
strued.67 Immunity  from  taxation  is  a  personal  privilege 
which  does  not  extend  beyond  the  immediate  grantee  un- 
less it  is  otherwise  so  declared  in  express  terms.68  A 
municipal  corporation  cannot,  by  the  exercise  of  a 
statutory  power  of  taxation,  diminish  the  interest  payable 
to  the  holder  of  a  funded  obligation  of  the  municipality 
under  the  terms  of  the  bond.69  The  subject  of  exemption 

E.  v.  Tennessee,  153  id.  486;  New  Orleans  v.  Citizens '  Bank,  167  id.  371; 
Stearns  v.  Minnesota,  179  id.  223. 

65  Providence  Bank  v.  Billings,  4  Pet.  514;  Tucker  v.  Ferguson,  22  Wall. 
527;  M.  G.  Co.  v.  Shelby  County,  109  U.  S.  398. 

66  The  Delaware  E.  Tax,  18  Wall.  206;   Erie  Ey.  v.  Penna.,  21  id.  492; 
The  License  Tax  Cases,  5  id.  462 ;  Home  Ins.  Co.  v.  Augusta,  93  U.  S.  116 ; 
S.  C.  S.  Ey.  v.  Sioux  City,  138  id.  98;  N.  O.  C.  &  L.  E.  v.  New  Orleans,  143 
id.  192;   W.  &  W.  E.  v.  Alsbrook,  146  id.  279;    Shelby  County  v.  Union 
&  Planters'  Bank,  161  id.  149;  New  Orleans  v.  Citizens'  Bank,  167  id. 
371. 

"Tucker  v.  Ferguson,  22  Wall.  527;  W.  F.  Co.  v.  East  St.  Louis,  107 
U.  S.  365;  Ey.  Co.  v.  Philadelphia,  101  id.  528;  Tomlinson  v.  Branch, 
15  Wall.  460;  E.  Cos.  v.  Gaines,  97  U.  S.  697;  Picard  v.  E.  T.,  V.  &  G.  E., 
130  id.  637;  Y.  &  M.  V.  E.  v.  Thomas,  132  id.  174;  N.  O.  C.  &  L.  E.  v. 
New  Orleans,  143  id.  192;  W.  &  W.  E.  v.  Alsbrook,  146  id.  279;  W.  &  St. 
P.  L.  Co.  v.  Minnesota,  159  id.  526;  P.  F.  &  M.  I.  Co.  v.  Tennessee,  161 
id.  174;  C.  E.  &  B.  Co.  v.  Wright,  164  id.  327;  C.  &  L.  T.  E.  Co.  v.  Sand- 
ford,  ibid.  578;  Ford  v.  D.  &  P.  L.  Co.,  ibid.  662;  Citizens'  Savings  Bank  v. 
Owensboro,  173  id.  636;  Wells  v.  Savannah,  181  id.  531;  Orr  v.  Gilman, 
183  id.  278;  Chicago  Theological  Seminary  v.  Illinois,  188  id.  662. 

68  Picard  v.  E.  T.,  V.  &  G.  E.,  130  U.  S.  637;  People  v.  Cook,  148  id.  397; 
K.  &  W.  E.  v.  Missouri,  152  id.  301;   St.  L.  &  S.  F.  Ey.  v.  Gill,  156  id. 
649 ;  N.  &  W.  E.  v.  Pendleton,  ibid.  667 ;  P.  F.  &  M.  I.  Co.  v.  Tennessee,  161 
id.  174;   Memphis  Bank  v.   Tennessee,  ibid.  186;   P.  I.  Co.  v.  Tennessee, 
ibid.  193;  C.  &  L.  T.  Co.  v.  Sandford,  164  id.  578;  G.  &  S.  I.  E.  v.  Hewes, 
183  id.  66 ;  N.  C.  Ey.  v.  Maryland,  187  id.  258. 

69  Murray  v.  Charleston,  96  U.  S.  432. 


54  TAXATION. 

by  contract  from  state  taxation  is  more  fully  discussed  in 
Chapter  V. 

State  taxation  as  affected  by  the  grant  to  Congress  of 
the  power  of  regulating  commerce. 

28.  The  constitutional  grant  to  Congress  of  the  power 
of  regulating  "  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes''  also  affects 
to  some  extent  the  exercise  by  the  states  of  the  power  of 
taxation,  but  the  states  are  not  prohibited  from  taxing 
either  the  instrumentalities,  or  the  subjects,  of  foreign  or 
interstate  commerce,  provided  that  such  taxation  be  im- 
posed on  those  instrumentalities  and  subjects  as  compo- 
nent parts  of  the  mass  of  property  in  the  state,  or  by 
reason  of  the  citizenship  of  their  owners  as  subjects  of  the 
sovereignty  of  the  state,  and  provided  also,  that  that 
which  is  in  form  taxation,  be  not  in  substance  a  regula- 
tion of,  or  a  restraint  upon,  foreign  or  interstate 
commerce.70  In  accordance  with  this  distinction,  a 
state  may  tax  ships  and  ferry  boats  as  the  personal  prop- 
erty of  their  owners,  where  either  the  owner,  by  reason  of 
his  residence,  or  the  property  because  of  its  situs  is  subject 
to  the  taxing  power  of  the  state ; 71  and  a  state  may  tax 
goods  brought  from  another  state  and  mingled  with  the 
mass  of  property  in  the  taxing  state,72  and  goods  within 

70  Gibbons  v.  Ogden,  9  Wheat.  201;  The  Passenger  Cases,  7  How.  479; 
Transportation  Co.  v.  Wheeling,  99  U.  S.  280;  W.  F.  Co.  t>.  East  St.  Louis, 
107  id.  374;  California  v.  C.  P.  B.,  127  id.  1;  Brimmer  v.  Eebman,  138 
id.  78;  Massachusetts  v.  W.  U.  T.  Co.,  141  id.  40;  P.  T.  C.  Co.  v.  Adams, 
155  id.  688;  P.  &  S.  C.  Co.  v.  Louisiana,  156  id.  590;  W.  U.  T.  Co.  v. 
Taggart,  163  id.  1;  A.  Ex.  Co.  v.  Ohio,  165  id.  194,  166  id.  185;  New 
York  v.  Eoberts,  171  id.  658;  P.,  C.,  C.  &  St.  L.  By.  v.  Board  of  Pub. 
Works,  172  id.  32;  K.  &  H.  Bridge  Co.  v.  Illinois,  175  id.  626;  U.  E.  T. 
Co.  v.  Lynch,  177  id.  149. 

nW.  F.  Co.  v.  East  St.  Louis,  107  U.  S.  365;  T.  Co.  v.  Wheeling,  99 
id.  273. 

"Woodruff  v.  Parham,  8  Wall.  123;  Brown  v.  Houston,  114  U.  S.  622; 


TAXATION    OF    COMMEECE.  55 

the  state  intended  for  transportation  to  another  state  but 
not  actually  stated  on  their  voyage ; 73  provided,  that  the 
taxation  is  not  so  imposed  as  to  discriminate  against  either 
the  natural  products  of,  or  goods  manufactured  in,  an- 
other state.74  A  state  may  require  a  foreign  corporation 
which  is  engaged  in  interstate  commerce  to  pay  for  the 
privilege  of  exercising  the  franchises  of  a  corporation,75 
though  not  for  the  right  of  transporting  interstate  passen- 
gers,76 within  its  borders.  It  may  tax  its  own  citizens  for 
the  prosecution  of  any  particular  business  or  profession 
within  the  state,  unless  that  business  be  directly  concerned 
with  interstate  commerce ;  thus,  while  a  state  may  not  tax 
drummers  of  goods  made  in  other  states,77  it  may  tax  per- 
sons who  sell  goods  shipped  to  them  from  outside  points,78 
and  it  may  tax  exchange  brokers,  despite  the  fact  that  bills 
of  exchange  are  instruments  of  foreign  and  interstate 
commerce.79  It  may  tax  agents  engaged  in  hiring  labour- 

P.  &  S.  C.  Co.  v.  Bates,  156  id.  577;  A.  S.  &  W.  Co.  v.  Speed,  192  id. 
500;  cf.  Kelley  v.  Ehoads,  188  id.  1. 

73Coe  v.  Errol,  116  U.  S.  517;  D.  M.  Co.  v.  Ontonagon,  188  id.  82. 

"Ward  v.  Maryland,  12  Wall.  418;  Welton  v.  Missouri,  91  U.  S.  275; 
Guy  v.  Baltimore,  100  id.  434;  Webber  v.  Virginia,  103  id.  344;  Walling  v. 
Michigan,  116  id.  446;  Bobbins  v.  Shelby  Co.,  120  id.  489;  Corson  v. 
Maryland,  ibid.  502;  Asher  v.  Texas,  128  id.  129;  Brennan  v.  TitusviUe, 
153  id.  289;  Stockard  v.  Morgan,  185  id.  27;  CaldweU  v.  North  Carolina, 
187  id.  622;  N.  &  W.  Ey.  v.  Sims,  191  id.  441.  But  see  Hinson  v.  Lott, 
8  Wall.  148;  Downham  v.  Alexandria  Council,  10  id.  173;  Machine  Co. 
v.  Gage,  100  U.  S.  676;  Tiernan  v.  Einker,  102  id.  123;  Ficklen  v.  Shelby 
County,  145  id.  1;  Emert  v.  Missouri,  156  id.  296;  Eash  v.  Parley,  159 
id.  263;  A.  S.  &  W.  Co.  v.  Speed,  192  id.  500. 

75  Maine  v.  G.  T.  Ey.,  142  U.  S.  217.  Bradley,  Harlan,  Lamar,  and 
Brown,  JJ.,  dissented.  See  also  Crutcher  v.  Kentucky,  141  id.  47;  Ashley 
v.  Eyan,  153  id.  436;  N.  Y.,  L.  E.  &  W.  E.  v.  Pennsylvania,  158  id.  431; 
New  York  v.  Eoberts,  171  id.  658. 

78  Allen  v.  P.  P.  C.  Co.,  191  U.  S.  171. 

"Bobbins  v.  Shelby  County,  120  U.  S.  489;  Asher  v.  Texas,  128  id.  129; 
Brennan  v.  Titusville,  153  id.  289;  Stockard  v.  Morgan,  185  id.  27;  Cald- 
well  v.  North  Carolina,  187  id.  622. 

"Machine  Co.  v.  Gage,  100  U.  S.  676;  Emert  v.  Missouri,  156  id.  296; 
Eash  v.  Farley,  159  id.  263 ;  A.  S.  &  W.  Co.  v.  Speed,  192  id.  500. 

79  Nathan  v.  Louisiana,  8  How.  73. 


56  TAXATION. 

ers  to  be  employed  beyond  the  limits  of  the  state,  even 
though  transportation  must  eventually  take  place  as  the 
result  of  such  contracts ; 80  but  an  agent  employed  solely 
in  promoting  the  use  of  his  line  in  interstate  transporta- 
tion cannot  be  taxed,  for  the  business  is  directly  connected 
with  commerce  and  consists  wholly  in  carrying  it  on.81  It 
has  the  right  to  impose  a  license  tax,82  or  a  tax  on  re- 
ceipts,83 upon  a  company  engaged  in  local  commerce, 
although  the  company  be  also  engaged  in  interstate  busi- 
ness ; 84  but  it  cannot  impose  such  charges  upon  strictly  in- 
terstate commerce.85  It  may,  however,  tax  so  much  of  the 
gross  receipts  of  an  interstate  railroad  company  as  are 
earned  within  the  state.86  If  property  within  a  state  and 
otherwise  liable  to  taxation  be  in  money  at  the  date  of  as- 
sessment for  taxation,  a  subsequent  investment  thereof  in  a 
subject  of  commerce  does  not  relieve  that  capital  from  lia- 
bility to  state  taxation.87  While  a  state  cannot  tax  the 
interstate  transportation  of  passengers  or  goods,  it  may  by 
its  charter  of  a  railway  charge  a  toll  payable  to  the  state 
for  the  use  of  the  improved  facilities  of  travel  furnished  by 
the  railway,88  and  it  may  tax  its  railway  companies  upon 
the  cash  value  of  their  capital  stock.89  It  may  tax  an  inter- 

80  Williams  v.  Fears,  179  U.  S.  270. 

81McCall  v.  California,  136  U.  S.  104.  See  also  N.  &  W.  E.  v.  Penn- 
sylvania, ibid.  114;  Crutcher  v.  Kentucky,  141  id.  47. 

82  P.  T.  C.  Co.  v.  Charleston,  153  U.  S.  692;  Osborne  v.  Florida,  164  id. 
650;  P.  Co.  v.  Adams,  189  id.  420;  Allen  v.  P.  P.  C.  Co.,  191  id.  171. 

^Eatterman  v.  W.  U.  T.  Co.,  127  U.  S.  411;  W.  U.  T.  Co.  v.  Alabama, 
132  id.  472;  P.  Ex.  Co.  v.  Seibert,  142  id.  339. 

8*A  company  which  carries  to  or  from  a  ferry  passengers  intending  to 
go  to  another  state,  and  which  makes  a  separate  charge  for  such  service,  is 
not  engaged  in  interstate  commerce,  and  a  license  tax  upon  such  company 
is  constitutional :  New  York  v.  Knight,  192  U.  S.  21. 

""Leloup  v.  Port  of  Mobile,  127  U.  S.  640;  Crutcher  v.  Kentucky,  141 
id.  47. 

86  Maine  v.  G.  T.  Ey.,  142  U.  S.  217. 

87  People  v.  Commissioners,  104  U.  S.  466. 

88  B.  &  O.  E.  v.  Maryland,  21  Wall.  456. 

89  The  Delaware  E.  Tax,  18  Wall.  206. 


TAXATION    OF    COMMERCE. 


57 


state  railway,  car,  express,  or  telegraph  company  upon  its 
property  within  the  state,  finding  the  value  of  the  whole 
property,  both  tangible  and  intangible,  of  the  corporation, 
which  is  used  in  its  business,  and  then  computing  the  value 
of  the  line  within  the  state  by  its  relative  length  to  the 
whole.90  On  the  other  hand,  a  state  may  not  tax  sheep 
which  are  driven  at  reasonable  speed  across  its  territory, 
although  they  are  allowed  to  graze  on  the  way.91  It  may 
not  tax  ships  and  ferryboats  which  come  within  the  juris- 
diction in  the  prosecution  of  foreign  or  interstate  com- 
merce, unless  the  owner  is  by  residence  subject  to  the 
taxing  power  of  the  state.92  Nor  can  a  state  tax  the  trans- 
portation of  passengers  coming  by  water  into  its  ports 
from  a  foreign  country  or  from  another  state ; 93  nor  can 
a  state  tax  the  interstate  transportation  of  goods  by 
water ; 94  nor  can  a  state  impose  port  dues,  that  is,  charges 
payable  by  all  vessels,  entering,  remaining  in,  or  leaving  a 
port,  without  regard  to  services  rendered  to,  or  received 
by,  the  vessel ; 95  nor  can  a  state  tax  a  telegraph  company 
upon  messages  transmitted  by  it  to  points  outside  of  the 

90  P.,  C.,  C.  &  St.  L.  Ey.  v.  Backus,  154  U.  S.  421;  C.,  C.,  C.  &  St.  L.  Ey. 
v.  Backus,  ibid.  439;  P.  P.  C.  Co.  v.  Pennsylvania,  141  id.  18;  A.  E.  T.  Co. 
v.  Hall,  174  id.  70;  U.  E.  T.  Co.  v.  Lynch,  177  id.  149;  A.  Ex.  Co.  v.  Ohio, 
165  id.  194,  166  id.  185;  A.  Ex.  Co.  v.  Kentucky,  166  id.  171;  W.  U.  T. 
Co.  v.  Massachusetts,  125  id.  530;   W.  U.  T.  Co.  v.  Taggart,  163  id.  1; 
W.  U.  T.  Co.  v.  Missouri,  190  id.  412.     But  in  estimating  the  value  of  the 
whole  property  the  state  may  not  include  property  in  another  state  which 
is  not  used  by  the  company  in  its  business:  Fargo  v.  Hart,  193  id.  490. 

91  Kelley  v.  Ehoads,  188  U.  S.  1. 

92  Hays  v.  P.  M.  S.  S.  Co.,  17  How.  596;   St.  Louis  v.  W.  F.  Co.,  11 
Wall.  423;   Morgan  v.  Parham,  16  id.  471;   Moran  v.  New  Orleans,  112 
U.   S.  69;   G.  F.  Co.  v.  Pennsylvania,  114  id.  196;   P.  &  S.  S.  S.  Co.  v. 
Pennsylvania,  122  id.  326. 

83  The  Passenger  Cases,  7  How.  283 ;  Henderson  v.  The  Mayor,  92  U.  S. 
259;  Chy  Lung  v.  Freeman,  ibid.  275;  People  v.  C.  G.  T.,  107  id.  59;  P. 
&  S.  S.  S.  Co.  v.  Pennsylvania,  122  id.  326,  overruling  the  case  of  the 
State  Tax  on  Eailway  Gross  Eeceipts,  15  Wall.  284. 

94  Almy  v.  California,  24  How.  169. 

95  Steamship  Co.  v.  Portwardens,  6  Wall.  31. 


58  TAXATION. 

state ; 96  nor  can  a  state  tax  the  interstate  transportation 
of  passengers  or  goods.  It,  therefore,  cannot  tax  inter- 
state freight  by  the  pound ; 97  nor  can  it  tax  the  total  num- 
ber of  sleeping  cars  brought  into  the  state  by  a  foreign 
corporation ; 98  nor  can  it  tax  the  entire  gross  receipts  of 
corporations  engaged  in  the  business  of  running  cars  not 
their  own  property  over  a  railway  line  within  the  state.99 

96  W.  U.  T.  Co.  v.  Texas,  105  U.  S.  460. 

m  The  State  Freight  Tax,  15  Wall.  232;  E.  By.  v.  Pennsylvania,  ibid.  282, 
note.  '-if 

•"Pickard  v.  P.  S.  C.  Co.,  117  U.  S.  34;  Tennessee  v.  P.  S.  C.  Co.,  ibid.  51; 
Allen  v.  P.  P.  C.  Co.,  191  id.  171. 

99  Fargo  v.  Michigan,  121  U.  S.  230. 


CHAPTER  IV. 

THE    EEGULATION    OF    COMMEECE. 

29.  The  constitutional  provisions. 

30.  The  historical  reason  for  the  provisions. 

31.  Commerce  defined. 

32.  Kegulation  of  commerce  defined. 

33.  The  general  principles  defining  the  limits  of  national  and  state  regu- 

lation. 

34.  The  internal  commerce  of  a  state. 

35.  Navigable  waters  and  the  soil  under  them. 

36.  Preferences  of  ports. 

37.  Duties  upon  exports. 

38.  Duties  upon  tonnage. 

39.  Port  dues. 

40.  Pilotage. 

41.  Eegulation  of  navigation. 

42.  Port  regulations. 

43.  Quarantine. 

44.  Ferries. 

45.  Bridges  and  dams. 

46.  Improvements  of  navigation. 

47.  Wharves  and  piers. 

48.  State  duties  upon  imports  and  exports. 

49.  State  inspection  laws. 

50.  Taxation  discriminating  against  goods  from  other  states. 

51.  The  original  package  doctrine. 

52.  Transportation:    (a)    State  regulation  in  the  exercise  of  the  police 

power;   (b)  Eegulation  by  taxation;   (c)  The  Interstate  Commerce 
Act. 

53.  The  Anti-trust  law. 

54.  Telegraphs. 

55.  Commerce  with  the  Indian  tribes. 

The  constitutional  provisions. 

29.  The  Constitution  of  the  United  States  contains 
three  clauses  which  directly  bear  upon  the  regulation  of 
commerce.  Section  8  of  Article  I  declares  that  "the  Con- 
gress shall  have  power  ...  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  states,  and  with 
the  Indian  tribes."  Section  9  of  the  same  article  enum- 

59 


60  THE   REGULATION    OF    COMMERCE. 

erates  among  the  exceptions  from  the  powers  granted  to 
the  United  States,  that  "no  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  state.  No  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  state  over  those  of  another :  nor  shall  vessels 
bound  to,  or  from,  one  state,  be  obliged  to  enter,  clear,  or 
pay  duties  in  another/'  Section  10  of  the  same  article, 
in  its  enumeration  of  the  expressed  restrictions  upon  the 
powers  of  the  states,  declares  that  "no  state  shall,  without 
the  consent  of  the  Congress,  lay  any  imposts  or  duties  on 
imports  or  exports,  except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws :  and  the  net  produce 
of  all  duties  and  imposts,  laid  by  any  state  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the  United 
States ;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress.  No  state  shall,  without  the 
consent  of  Congress,  lay  any  duty  of  tonnage."  The 
constitutional  provisions  are,  in  effect,  first,  a  grant  to 
Congress  of  the  power  of  regulating  foreign  and  interstate 
commerce,  with  the  expressed  restriction  that  the  United 
States  shall  not  lay  any  tax  or  duty  on  articles  exported 
from  any  state,  nor  give  preference  by  any  regulation  to 
the  ports  of  one  state  over  those  of  another,  nor  oblige 
vessels  bound  to  or  from  one  state  to  enter,  clear,  or  pay 
duties  in  another ;  second,  an  implied  restraint  upon  state 
regulation  of  foreign  or  interstate  commerce;  and  third, 
an  expressed  prohibition  of  state  duties  on  imports,  ex- 
ports, or  tonnage,  save  under  certain  denned  restrictions, 
the  most  material  of  which  is  the  consent  of  Congress. 
These  constitutional  provisions  are  not  only  in  full  force 
and  vigour  to-day,  but  their  application  is  wider  and  more 
far-reaching  than  the  framers  of  the  Constitution  im- 
agined to  be  within  the  bounds  of  possibility.  The  only 
commerce  that  they  knew  was  the  foreign  and  coastwise 


KEASON    FOB    PROVISION. 


61 


commerce  that  was  carried  in  ships.  They  little  thought 
that  the  time  would  ever  come  when  the  commerce  so 
carried  would  be  far  exceeded  in  amount  and  in  value  by 
the  internal  commerce  of  the  country,  yet  that  time  has 
come.  In  the  one  hundred  and  seventeen  years  that  have 
passed  since  the  adoption  of  the  Constitution,  the  country 
has  made  great  strides.  Less  than  three  millions  of  people 
have  grown  to  be  more  than  seventy  millions  in  number. 
Discoveries  in  science  and  inventions  in  the  arts  have 
developed  new  subjects  of  trade,  and  have  created  new 
agencies  of  commerce.  Steam  and  electricity  have  been 
made  to  do  man's  bidding.  Sailing  vessels  have  given 
way  to  steamships,  and  railways  have  superseded  turnpike 
roads,  Conestoga  wagons  and  canals  for  the  movement 
of  intraterritorial  freight.  Telegraphs  and  telephones 
have  annihilated  distance.  The  growth  of  population,  the 
creation  of  new  subjects  of  trade,  and  the  improvements 
in  the  movement  of  traffic  have  necessarily  resulted  in  a 
vast  enlargement  in  the  volume  of  commerce.  In  view 
of  these  great  changes  in  the  conditions  of  the  problem, 
it  is  more  than  ever  important  that  the  constitutional 
limits  upon  the  regulation  of  commerce  should  be  clearly 
comprehended,  and  that  the  line  which  separates  the 
provinces  of  federal  and  of  state  authority  over  this 
subject  of  national  interest  should  be,  so  far  as  is  possible, 
accurately  defined. 

The  historical  reason  for  the  provisions. 

30.  It  is  an  historical  fact  that  the  Constitution  was 
framed  and  adopted  mainly  because  all  of  the  states  had 
suffered  under  the  Confederation  by  reason  of  the  selfish 
commercial  policy  of  England  in  closing  her  markets  to 
goods  of  American  manufacture,  and  because  some  of  the 
states  had  also  suffered  by  reason  of  the  no  less  selfish 
commercial  policy  of  other  states  in  the  imposition  of 


62  THE   REGULATION    OF    COMMEECE. 

heavy  duties  on  imported  goods,  and  in  the  enforcement 
of  vexatious  restrictions  upon  trade.  There  were  great 
differences  of  opinion  as  to  other  features  of  the  Constitu- 
tion, yet,  in  the  convention  of  1787  and  among  the  people, 
there  was  practical  unanimity  as  to  the  expediency  of  vest- 
ing in  the  government  of  the  United  States  the  power  of 
so  regulating  commerce  as  to  overcome  the  disintegrating 
forces  which  threatened  the  loss  of  all  that  had  been  gained 
by  the  success  of  the  Revolution.1  But  if  the  framers  of 
the  Constitution  had  ever  imagined  that  the  power  of 
regulating  commerce  would  be  expanded  as  it  has  been  by 
judicial  construction,  no  such  power  would  have  been 
vested  in  Congress. 

Commerce  denned. 

31.  The  term  " commerce,"  as  Marshall,  C.  J.,  construed 
it,2  means  not  only  traffic,  but  also  commercial  intercourse 
in  all  its  branches,  including  transportation  by  sea  and 
on  land,  importation  and  exportation,  and  all  that  is 
necessarily  incident  thereto.  As  the  Constitution  is  a 
frame  of  government  intended  to  endure  for  all  time,  it 
follows  that  the  term  "  commerce "  must  receive  a  con- 
struction sufficiently  elastic  to  comprehend  not  only  the 
subjects  and  instrumentalities  of  commerce  known  and 
used  when  the  Constitution  was  framed,  but  also  all 
present  and  future  subjects  of  commerce  and  agencies  of 
commercial  intercourse.3  Yet  everything  that  is  con- 
nected with  commerce  is  not  necessarily  commerce.  Bills 
of  exchange  may  be  given  in  payment  for  goods  to  be  im- 
ported, and  yet  such  bills  are  mere  personal  obligations, 

Gibbons  v.  Ogden,  9  Wheat.  1;  'Brown  v.  Maryland,  12  id.  445;  Cook 
v.  Pennsylvania,  97  U.  S.  566;  County  of  Mobile  v.  Kimball,  102  id.  691. 
2  Gibbons  v.  Ogden,  9  Wheat.  1. 
8  P.  T.  Co.  v.  W.  U.  T.  Co.,  96  U.  S.  1. 


COMMERCE   DEFINED. 


63 


and  are  not  in  themselves  subjects  of  commerce.4  Money 
assessed  for  state  taxation  is  not  by  a  subsequent  invest- 
ment in  a  subject  of  commerce  relieved  from  such  tax- 
ation.5 So,  also,  a  contract  of  insurance  is  not ' '  an  instru- 
mentality of  commerce,  but  a  mere  incident  of  commercial 
intercourse. "  6  A  state  may,  therefore,  prohibit  foreign 
insurance  companies  and  their  agents  from  effecting 
within  its  territory  contracts  of  insurance,  marine,  or 
otherwise,  save  upon  such  conditions  as  the  state  may 
prescribe ; 7  but  a  state  cannot  prohibit  its  citizens  from 
effecting  in  another  state  a  contract  of  insurance.8  Acts  of 
Congress9  having  authorized  the  registration  in  the 
patent  office  of  devices  in  the  nature  of  trade-marks,  made 
the  wrongful  use  thereof  a  cause  of  action  for  damages, 
and  punished  by  fine  and  imprisonment  the  fraudulent 
use,  sale,  and  counterfeiting  thereof,  it  was  held 10  that  the 
statutes  in  question  were  unconstitutional  because  not 
limited  in  terms,  or  by  the  essential  nature  of  their  subject- 
matter,  to  the  regulation  of  trade-marks  in  their  relation 
to  foreign  and  interstate  commerce.  A  subsequent 
statute  ll  has  provided  for  the  registration  and  protection 
of  trade-marks  used  in  foreign  and  interstate  commerce, 
and  is  not  open  to  the  objection  which  invalidated  the  prior 
statutes.  On  the  other  hand,  bills  of  lading  of  goods  sold 

*Bank  of  Augusta  v.  Earle,  13  Pet.  519,  531;  Sturges  v.  Crowninshield, 
4  Wheat.  147;  Nathan  v.  Louisiana,  8  How.  73. 

5  People  v.  Commissioners,  104  U.  S.  466. 

6  Per  Gray,  J.,  Nutting  v.  Massachusetts,  183  U.  S.  556. 

7  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  id.  410;  L.  I.  Co. 
v.  Massachusetts,  ibid.  566;  P.  F.  A.  v.  New  York,  119  id.  110;  Hooper 
v.  California,  155  id.  648;  N.  Y.  L.  I.  Co.  v.  Cravens,  178  id.  389;  Nutting 
v.  Massachusetts,  183  id.  553. 

"Allgeyer  v.  Louisiana,  165  U.  S.  578. 

8 14th   August,   1876,   19   Stat.   141;    8th   July,   1870,   Eev.   Stat.,   sees. 
4937  to  4947. 

10  The  Trade  Mark  Cases,  100  U.  S.  82. 

11  Act  of  3d  March,  1881,  21  Stat.  502,  c.  138.     See  also  Eyder  v.  Holt, 
128  U.  S.  525;  Warner  <v.  S.  &  H.  Co.,  191  id.  195. 


64  THE   REGULATION    OF    COMMEECE. 

and  transported  in  the  course  of  interstate  commerce  are, 
by  reason  of  their  representative  character,  entitled  to 
protection  as  commerce,12  and  the  transmission  of  ideas  by 
telegraph  is  commerce,  for  the  reason  that  in  the  develop- 
ment of  modern  business  methods  the  telegraph  has 
become  indispensable  as  a  means  of  intercommunication  in 
commercial  intercourse.13  Would  not  the  same  reasoning 
apply,  in  the  case  of  goods  admittedly  subjects  of  com- 
merce, to  the  trade-marks  on  such  goods,  the  bills  of  ex- 
exchange  drawn  for  the  price  of  the  goods,  and  the  policies 
of  insurance  against  the  loss  of  the  goods  by  fire  or  by  the 
perils  of  navigation?  Insurance,  commercial  paper,  and 
trade-marks  are  certainly  as  nearly  related  to,  and  as  truly 
incidents  of,  commerce,  as  a  telegraphic  inquiry  as  to  the 
state  of  the  market,  or  a  telegraphic  order  for  the  for- 
warding of  the  goods,  though,  unlike  the  bill  of  lading, 
they  do  not  represent  the  goods.  Lottery  tickets  are  sub- 
jects of  traffic,  and  the  carriage  of  such  tickets  by  independ- 
ent carriers  from  one  state  to  another  is  interstate  com- 
merce.14 The  transfer  of  shares  of  railway  companies  is 
interstate  commerce  when  such  shares  are  transferred  for 
the  purpose  of  vesting  in  a  holding  company  a  majority  of 
the  shares  of  two  competing  railways  engaged  in  inter- 
state traffic.15 

Regulation  of  commerce  defined. 

32.  To  regulate  commerce  is  "to  prescribe  the  rule  by 
which  commerce  is  to  be  governed.  "16  The  power  to 

"Almy  v.  California,  24  How.  169;  as  explained  by  Miller,  J.,  in  Wood- 
ruff v.  Parham,  8  Wall.  138.  A  tax  on  foreign  bills  of  lading  is  a  tax 
on  exports:  Fairbank  v.  U.  S.,  181  U.  S.  283. 

"P.  T.  Co.  v.  W.  U.  T.  Co.,  96  U.  S.  1,  9;  Tel.  Co.  v.  Texas,  105  id.  460, 
464;  W.  U.  T.  Co.  v.  James,  162  id.  650. 

"Lottery  Case,  188  U.  S.  321,  363.  Fuller,  C.  J.,  and  Brewer,  Shiras, 
and  Peckham,  JJ.,  dissented. 

16  N.  S.  Co.  v.  U.  S.,  193  U.  S.  197. 

"Per  Marshall,  C.  J.,  Gibbons  v.  Ogden,  9  Wheat.  1,  196. 


COMMEECE   DEFINED.  65 

regulate  is  unrestrained,  and  it  may,  therefore,  either 
control  or  prohibit.  Commerce  may  be  directly  regu- 
lated by  legislation  enacted  in  the  exercise  of  the 
police  power  and  prescribing  the  manner  in  which 
the  operations  of  commerce  are  to  be  conducted,  or  it  may 
be  indirectly  regulated  by  the  imposition  of  taxation  upon 
its  instrumentalities  or  subjects.17  Taxation  has  been  de- 
fined 18  as  the  compulsory  exaction  by  a  government,  in  the 
exercise  of  its  sovereignty,  of  a  payment  of  money  or  sur- 
render of  property  by  any  person,  natural  or  corporate, 
who,  or  whose  property  so  taxed,  is  subject  to  the  sov- 
ereign power  of  that  government.19  The  police  power 
may  be  defined  to  be  that  function  of  government  by  the 
exercise  of  which  all  persons  who  are  subject  to  the  sov- 
ereignty of  the  government  exercising  the  power  are,  for 
reasons  of  public  policy,  restrained  in  their  use  or  enjoy- 
ment of  some  right  of  person  or  of  property.20  The  police 
power  may  attain  its  end  by  absolutely  prohibiting  the 
exercise  of  a  particular  right  or  by  so  regulating  the 
exercise  of  that  right  as  to  permit  its  use  under  conditions, 
and,  if  the  power  exist,  the  extent  to  which  it  may  be 
exercised  in  any  case  is  limited  only  by  the  legislation  of 
the  government  in  which  the  power  may  be  vested,  unless 
further  restraint  be  imposed  by  the  Constitution  of  the 
United  States  or  by  the  constitution  of  the  state.  Congress 
cannot,  in  the  exercise  of  the  power  to  regulate,  tax  com- 

17  P.  &  S.  S.  S.  Co.  v.  Pensylvania,  122  U.  S.  336,  per  Bradley,  J.     ' '  Tax- 
ing is  one  of  the  forms  of  regulation.     It  is  one  of  the  principal  forms. ' ' 

18  Supra,  sec.  14. 

"McCulloch  v.  Maryland,  4  Wheat.  420;  The  State  Freight  Tax,  15  Wall. 
277. 

^Taney,  C.  J.,  said,  in  the  License  Cases,  5  How.  504,  583,  that  the 
police  powers  "are  nothing  more  nor  less  than  the  powers  of  government 
inherent  in  every  sovereignty  to  the  extent  of  its  dominions.''  Harlan,  J., 
said,  in  Patterson  v.  Kentucky,  97  U.  S.  501:  "The  police  powers  extend 
at  least  to  the  protection  of  the  lives,  the  health,  and  the  property  of  the 
community  against  the  injurious  exercise  by  the  citizen  of  his  own  rights." 


66  THE   REGULATION    OF    COMMERCE. 

merce ; 21  and  while  the  states  cannot  regulate  foreign  or 
interstate  commerce,  they  are  not  prohibited  from  taxing 
either  its  instrumentalities  or  subjects,  provided  that  tax- 
ation be  imposed  thereon  as  component  parts  of  the  mass 
of  property  in  the  state,  and  provided  also  that  that  which 
is  in  form  taxation  be  not  in  substance  a  restriction  upon, 
or  a  prohibition  of,  foreign  or  interstate  commerce.  The 
essential  difference  between  taxation  of  property,  and 
regulation  of  commerce  in  the  guise  of  taxation,  is  il- 
lustrated by  every  case  in  which  the  court  has  had  to 
determine  whether  any  particular  tax  imposed  under  state 
authority  on  an  instrumentality  or  subject  of  foreign  or 
interstate  commerce  be,  or  be  not,  forbidden  by  the  Con- 
stitution.22 In  the  exercise  of  its  power  over  commerce, 
Congress  has,  in  statutes  too  numerous  to  mention,  im- 
posed duties  on  imports  and  even  prohibited  importations 
of  certain  goods  23  and  regulated,  among  other  things,  the 
registration  and  recording  of  the  titles  of  ships,24  the  clear- 
ance and  entry  of  ships  and  steamers,25  the  tonnage  duties 
payable  to  the  United  States  by  vessels,26  navigation,  in- 
cluding sailing  rules,  and  the  life-saving  service,27  the 
transportation  of  passengers  and  merchandise  by  sea,28 
the  shipping  of  sailors,29  and  their  pay  and  discharge,30 

21  Gibbons  v.  Ogden,  9  Wheat.  201 ;  The  Passenger  Cases,  7  How.  402,  479. 

22  See  particularly  T.  Co.  v.  Wheeling,  99  U.  S.  280;  W.  F.  Co.  v.  St. 
Louis,  107  id.  374;  C.  &  C.  B.  Co.  v.  Kentucky,  154  id.  204,  212. 

^Buttfield  v.  Stranahan,  192  U.  S.  470. 

24  29  Stat.  188  c.  255. 

^Eev.  Stat.  4197  et  seq. 

26Eev.  Stat.  4219;   24  Stat.  79,  c.  421. 

27Eev.  Stat.  4233;  26  Stat.  320,  c.  802;  26  Stat.  425,  c.  875;  27  Stat.  557, 
c.  202;  28  Stat.  82,  c.  83;  28  Stat.  281,  c.  284;  28  Stat.  645,  c.  64;  28 
Stat.  672,  c.  102;  29  Stat.  381,  c.  401;  29  Stat.  689,  c.  389;  30  Stat.  96, 
c.  4. 

""Bev.  Stat.  4252,  4463;  22  Stat.  186,  c.  374;  27  Stat.  445,  c.  105;  29 
Stat.  122,  c.  199;  31  Stat.  799,  c.  386. 

29Eev.  Stat.  4501,  4509;  28  Stat.  667,  c.  97;  29  Stat.  691,  c.  389;  30 
Stat.  775,  c.  28. 

""Bey.  Stat.  4549;  30  Stat.  755,  c.  28. 


COMMEECE   DEFINED.  67 

the  lighthouse  service,31  the  coast  survey,32  the 
building  and  use  of  bridges,33  the  improvement 
of  rivers  and  harbours,34  and  telegraphs.35  It  has 
authorized  the  transportation  of  government  supplies,  and 
mails,  and  troops  by  railway,  and  the  connection  of  rail- 
ways of  different  states  so  as  to  form  a  continuous  line ; 36 
it  has  permitted  the  states  to  regulate  the  storage  and  sale 
of  original  packages  of  intoxicating  liquors ; 37  it  has 
regulated  the  interstate  transportation  of  live  stock ; 38  it 
has  provided  for  arbitration  between  interstate  railroad 
companies  and  their  employees ; 39  it  has  required  the  use 
of  automatic  couplers  on  interstate  trains ; 40  it  has,  by  the 
Interstate  Commerce  Act  and  its  amendments,41  regu- 
lated the  interstate  transportation  of  passengers  and 
freight  by  railways  and  constituted  a  commission  to  carry 
the  statute  into  effect ;  and  it  has  prohibited  the  making  of 
contracts  in  restraint  of  interstate  commerce.42  The 
states  have  facilitated  foreign  and  interstate  commerce 
by  the  improvement  of  navigation,  the  construction 
of  railways,  wharves,  and  bridges,  and  they  have  inci- 
dentally affected  it  by  the  enactment  of  pilotage,  quar- 

31Eev.  Stat.  4653. 
32Eev.  Stat.  4681. 

33  27  Stat.  110,  c.  158;  28  Stat.  362,  c.  299;  30  Stat.  1151,  c.  425. 
"Bev.  Stat.  5244;  26  Stat.  426,  453,  454,  c.  907;  27  Stat.  110,  c.  158; 
30  Stat.  1151  c.  425. 

85  Eev.  Stat.  5623 ;  25  Stat.  382,  c.  772. 

36  Rev.  Stat.  5285;  25  Stat.  382,  c.  772. 

37  26  Stat.  313,  c.  728. 

^Kev.  Stat.  4386  et  seq.;  23  Stat.  31,  32,  c.  60. 

39  30  Stat.  424,  c.  370. 

40  27  Stat.  531,  c.  196. 

41 24  Stat.  379,  c.  104;  25  Stat.  855,  c.  382;  26  Stat.  743,  c.  128;  27 
Stat.  443. 

^26  Stat.  209,  c.  647.  See  also  U.  S.  v.  T.  M.  P.  A.,  166  U.  S.  290; 
U.  S.  v.  J.  T.  A.,  171  id.  505;  U.  S.  v.  E.  C.  Knight  Co.,  156  id.  1; 
Hopkins  v.  U.  S.,  171  id.  578;  A.  P.  &  S.  Co.  v.  U.  S.,  175  id.  211;  N.  S. 
Co.  v.  U.  S.,  193  id.  197. 


68  THE   REGULATION    OF    COMMERCE. 

antine,  and  police  laws.  The  states  have  also  regulated 
their  internal  commerce  by  taxation  and  by  police 
legislation. 

The  general  principles  defining  the  limits  of  national  and 
state  regulation. 

33.  Foreign  commerce  is,  obviously,  that  which  is 
carried  on  between  a  foreign  port,  or  a  point  in  a  foreign 
country,  and  a  port  of,  or  a  point  in,  the  United  States; 
interstate  commerce  is  that  which  is  carried  on  between 
ports,  or  points,  in  different  states;  and  certainly  that 
commerce  which  begins,  moves,  and  ends,  exclusively  with- 
in a  state  must  be  regarded  as  internal  commerce  and  as 
such  subject  to  state  taxation  and  regulation.  Where  com- 
merce begins  within  a  state,  passes  beyond  the  territory 
of  that  state  and  through  part  of  another  state,  and  ends 
in  the  state  of  its  origin,  it  is  regarded  as  sufficiently  in- 
ternal commerce  to  be  subject  to  taxation  in  the  state  of 
its  origin  and  destination  "in  respect  of  receipts  for  the 
proportion  of  the  transportation  within  the  state. ' ' 43  On 
the  other  hand,  transportation  under  such  conditions  is 
subject  only  to  the  regulation  of  the  United  States  and  not 
to  the  regulation  of  the  state.44  It  has  also  been  held  that 
navigation  on  the  high  seas  between  ports  of  the  same  state 
is  subject  to  regulation  by  the  United  States.45  A  com- 
modity is  not  to  be  regarded  as  a  subject  of  foreign  or 
interstate  commerce  until  it  has  begun  to  move  in  trade 
from  one  country  or  state  to  another,46  for,  until  the 
commodity  is  actually  shipped  or  started, ' l  its  exportation 
is  a  matter  altogether  in  fieri,  and  not  at  all  a  fixed  and 

43  L.  V.  B.  v.  Penna.,145  U.  S.  192. 

44  Hanley  v.  K.  C.  S.  By.,  187  U.  S.  617. 
46  Lord  v.  S.  S.  Co.,  102  U.  S.  541. 

46  The  Daniel  Ball,  10  Wall.  557. 


LIMITS   OF    NATIONAL   AND   STATE   REGULATION.  69 

certain  thing. 7 ' 47  The  general  distinction  as  to  the  re- 
spective powers  of  the  United  States  and  the  states  over 
commerce  was  clearly  put  by  Marshall,  C.  J.,48  when  he 
said,  ' i  The  genius  and  character  of  the  whole  government 
seems  to  be  that  its  action  is  to  be  applied  to  all  the  ex- 
ternal concerns  of  the  nation,  and  to  those  internal 
concerns  which  affect  the  states  generally,  but  not  to  those 
which  are  completely  within  a  particular  state,  which  do 
not  affect  other  states,  and  with  which  it  is  not  necessary  to 
interfere  for  the  purpose  of  executing  some  of  the  general 
powers  of  the  government. "  Therefore,  the  internal 
commerce  of  a  state  is  exclusively  a  subject  of  regulation 
by  that  state;  and  foreign  and  interstate  commerce  are 
subjects  of  regulation  by  Congress.  But,  as  Curtis,  J., 
said,  the  power  to  regulate  foreign  and  interstate  "com- 
merce embraces  a  vast  field,  containing  not  only  many, 
but  exceedingly  various,  subjects,  quite  unlike  in  their 
nature;  some  imperatively  demanding  a  single  uniform 
rule,  operating  equally  on  the  commerce  of  the  United 
States  in  every  port,  and  some  ...  as  imperatively  de- 
manding that  diversity  which  alone  can  meet  the  local 
necessities. ' ' 49  Therefore,  where  the  subject  is  national 
in  its  character  and  demands  uniformity  of  regulation, 
Congress  alone  can  legislate,  and,  when  Congress  has  not 
legislated,  it  necessarily  follows  that  that  subject  is  to  be 
free  from  all  legislation  whatever.  The  so-called  "doctrine 
of  the  silence  of  Congress ' '  means  this,  and  nothing  more 
than  this.50  On  the  other  hand,  where  the  subject  is  not 

47Coe  v.  Errol,  116  U.  S.  528;  per  Bradley,  J. 

48  Gibbons  v.  Ogden,  9  Wheat.  294. 

49  Cooley  v.  Board  of  Wardens,  12  How.  299,  314. 

"Welton  v.  Missouri,  91  U.  S.  275;  County  of  Mobile  v.  Kimball,  102 
id.  691;  Brown  v.  Houston,  114  id.  681;  Bobbins  v.  Shelby  County  Taxing 
District,  120  id.  493;  Bowman  v.  C.  &  N.  W.  By.,  125  id.  465,  508;  Leisy 
v.  Hardin,  135  id.  100.  Compare  the  ingenious  argument  of  Dr.  Win. 


70  THE   REGULATION    OF    COMMERCE. 

national  in  its  character,  and  where  local  necessities  re- 
quire diversity  of  regulation,  the  states  may  legislate,  and 
their  legislation  will  be  controlling  and  effective  until,  and 
only  until,  congressional  legislation  shall  supersede  the 
state  legislation.51 

The  internal  commerce  of  a  state. 

34.  As  Chase,  C.  J.,  said,52  referring  to  the  internal 
commerce  of  a  state,  "Over  this  commerce  and  trade 
Congress  has  no  power  of  regulation  nor  any  direct  con- 
trol. This  power  belongs  exclusively  to  the  states. ' '  The 
United  States,  therefore,  may  not  prohibit  the  sale  within 
the  territory  of  a  state  of  illuminating  oil  inflammable  at 
less  than  a  specified  temperature ; 53  nor  license  the  sale  of 
liquor  in  violation  of  the  laws  of  the  state ; 54  nor  does  a  li- 
cense granted  by  the  United  States  exempt  the  licensee 
from  state  taxation  on  the  business  so  conducted ; 55  nor  do 
letters  patent  granted  for  an  invention  confer  upon  the 
patentee  the  right  of  selling  the  patented  article  in  viola- 
tion of  the  laws  of  the  state.56  The  cases  which  illustrate 
the  power  of  the  state  over  its  internal  commerce  are 
hereinafter  referred  to,  and  the  rule  deducible  from  them 
is  that,  while  each  state  did  not,  by  the  adoption  of  the 
Constitution,  surrender  its  ordinary  local  powers  of  self- 
government  operative  upon  all  persons  and  property 
which  exist,  or  may  come,  within  its  territory,  and  which 
merge  in  the  mass  of  persons  and  property  subject  to  its 

Draper  Lewis,  in  Chapter  VI  of  his  "  Federal  Power  over  Commerce  and 
its  Effect  on  State  Action." 

51  C.  &  C.  B.  Co.  v.  Kentucky,  154  U.  S.  204.  See  particularly  the 
judgment  of  Brown,  J.,  pp.  209  to  213,  where  there  is  a  full  discussion 
of  this  subject,  and  an  exhaustive  classification  of  the  cases. 

82  License  Tax  Cases,  5  Wall.  462,  470. 

68  U.  S.  v.  Dewitt,  9  WaU.  41 ;  cf .  Felsenheld  v.  U.  S.,  186  U.  S.  126. 

54  McGuire  v.  The  Commonwealth,  3  Wall.  387. 

"Pervear  v.  The  Commonwealth,  5  Wall.  475. 

66  Patterson  v.  Kentucky,  97  U.  S.  501. 


NAVIGABLE   WATEKS   AND   SOIL   UNDEB   THEM.  71 

jurisdiction,  yet,  nevertheless,  the  territorial  limits  of  each 
state's  jurisdiction,  the  grant  to  the  government  of  the 
United  States  of  powers  conflicting  with  state  sovereignty, 
and  a  due  regard  to  the  rights  of  citizens  of  other  states, 
must  be  held  to  limit  the  exercise  by  each  state  of  its  other- 
wise illimitable  powers,  by  the  restriction  that  those 
powers  are  not  to  be  so  exercised  as  to  interfere  with  the 
full  execution  of  the  powers  granted  to  the  United  States. 
Therefore,  persons  or  property  brought  within  the  terri- 
tory of  a  state  by  the  exercise  of  any  federal  power,  must 
be  exempted  from  obstructive  state  control  until  the 
federal  power  has  ceased  to  operate,  and  until  the  persons 
or  property  on  which  it  acted  have  merged  in  the  mass  of 
persons  or  property  within  the  territory  of  the  state.57  On 
the  same  principle,  federal  agencies  are  exempted  from 
any  such  state  regulation  as  hinders  the  agent  in  the  full 
performance  of  his  or  its  duty  to  the  government  of  the 
United  States. 

Navigable  waters  and  the  soil  under  them. 

35.  Before  the  Revolution,  the  title  to  navigable  waters 
and  to  the  soil  under  them  was  vested  in  the  crown,  or  in 
its  grantees.  After  the  Eevolution,  the  people  became 
sovereign,  and  thenceforth  the  title  to  navigable  waters 
within  the  jurisdiction  of  a  riparian  state  and  to  the  soil 
under  them  became  vested  in  that  state  for  the  public  use 
of  its  citizens.58  After  the  adoption  of  the  Constitution, 

"A  herd  of  sheep,  driven  at  a  reasonable  rate  of  speed  from  a  point  in 
one  state  a  distance  of  many  hundred  miles  across  the  territory  of  a  second 
state  to  a  point  in  a  third  state  and  fed  by  grazing  en  route,  is  property 
engaged  in  interstate  commerce,  and,  as  such,  exempt  from  taxation  in  the 
second  state:  Kelley  v.  Ehoads,  188  U.  S.  1. 

58  Martin  v.  Waddell,  16  Pet.  367;  Bundle  v.  D.  &  E.  C.  Co.,  14  How.  80; 
Den  v.  Jersey  Co.,  15  id.  426;  Smith  v.  Maryland,  18  id.  71;  Jones  v. 
Soulard,  24  id.  41;  E.  Co.  v.  Schurmeir,  7  Wall.  272;  Weber  v.  Harbor 
Commissioners,  18  Wall.  57;  I.  C.  E.  v.  Illinois,  146  U.  S.  387,  184  id.  77; 
St.  A.  F.  W.  P.  Co.  v.  St.  P.  W.  Comrs.,  168  id.  349. 


72  THE   EEGULATION    OF    COMMEKCE. 

as  before,  the  title  to  navigable  waters  and  to  the  soil  under 
them  and  the  right  to  fish  therein  remained  in  the  riparian 
state,  its  proprietary  title  extending  in  the  case  of  inland 
waters  constituting  its  boundary59  from  ordinary  high- 
water  mark  ad  medium  filce,  and  in  the  case  of  the  sea  and 
its  bays,  to  the  distance  that  the  international  jurisdiction 
of  the  United  States  extended ;  and  by  force  of  the  Consti- 
tution, the  United  States  acquired  only  the  right  to  exer- 
cise over  navigable  waters  its  power  of  regulating  naviga- 
tion, and  states  which  were  admitted  to  the  union  subse- 
quently to  the  adoption  of  the  Constitution  have,  of  course, 
in  this  respect  the  same  rights  of  sovereignty  and  jurisdic- 
tion as  the  original  thirteen  states.60  Therefore,  a  state 
may  rightfully  regulate  the  exercise  of  the  right  of  fishing 
in  its  navigable  waters,  and  enforce  by  judicial  proceed- 
ings a  forfeiture  of  vessels  whose  navigators  fail  to  con- 
form to  the  regulations  so  prescribed,  and  a  license  to 
navigate  granted  by  the  United  States  confers  no  im- 
munity from  the  operation  of  such  regulations.61  The 
right  of  the  people  of  a  state  to  fish  in  its  navigable  waters 
"  comes  not  from  their  citizenship  alone,  but  from  their 
citizenship  and  property  combined, ' ' 62  and  it  is,  therefore, 
a  right  which  does  not  by  force  of  the  Constitution  vest  in 
the  citizens  of  other  states.  The  power  granted  to  the 
United  States  of  jurisdiction  in  admiralty  does  not  carry 
with  it  a  cession  of  navigable  waters,  or  of  general  juris- 
diction over  them,  and,  therefore,  a  murder  committed  on 
a  vessel  of  the  navy  of  the  United  States  while  at  anchor 

159  Barney  v.  Keokuk,  94  IT.  S.  324;  Hardin  v.  Jordan,"  140  id.  371; 
Mitchell  v.  Smale,  ibid.  406. 

60  Pollard  v.  Hagan,  3  How.  212;  Weber  v.  Harbor  Commissioners,  18 
Wall.  57;  Shively  v.  Bowlby,  152  U.  S.  1;  M.  T.  Co.  v.  Mobile,  187  id. 
479;  U.  S.  v.  M.  E.  Co.,  189  id.  391. 

91  Smith  v.  Maryland,  18  How.  71;  Manchester  v.  Massachusetts,  139 
IT.  S.  240;  of.  Geer  v.  Connecticut,  161  id.  519. 

62  McCready  v.  Virginia,  94  U.  S.  391,  395. 


PREFERENCES    OF    PORTS.  73 

in  navigable  waters  within  the  jurisdiction  of  a  state  is  not 
cognizable  in  a  court  of  the  United  States.63 

Preferences  of  ports. 

36.  The  Constitution  declares  that  "no  preference  shall 
be  given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  state  over  those  of  another. ' ' 64     This  prohi- 
bition is  obviously  intended  to  guard  against  favouritism 
in  customs  regulations,  and,  therefore,  does  not  apply  to 
the  diversion  of  water  from  one  navigable  river  to  another 
in  an  improvement  of  navigation,65  nor  to  the  legalization 
by  an  act  of  Congress  of  a  bridge  over  navigable  waters, 
though  indirectly  obstructing  the  commerce  of  a  port.66 

Duties  upon  exports. 

37.  The  United  States  are  expressly  forbidden  to  tax 
exports.67     This  prohibition  applies  to  foreign,  and  does 
not  apply  to  interstate,  commerce,68  nor  to  goods  "im- 
ported from  the  United  States "  into  Porto  Rico.69    In- 
ternal revenue  stamps  required  to  be  placed  by  the  manu- 
facturer upon  articles  for  exportation  do  not  fall  within 
the  prohibition.70     On  the  other  hand,  a  specific  stamp 

88  U.  S.  v.  Bevans,  3  Wheat.  336. 
64  Article  I,  Sec.  9. 

66  South  Carolina  v.  Georgia,  93  IT.  S.  4. 

M  Pennsylvania  v.  W.  &  B.  B.  Co.,  18  How.  421,  423. 

67  Const.,  Article  I,  Sec.  9. 
"Woodruff  v.  Parham,  8  Wall.  123. 

68  Act  of  12th  April,  1900,  31  Stat.  77,  c.  191,  sees.  2  and  3;  Dooley  v. 
U.  S.,  183  U.  S.  151.     White,  J.,  held  that  the  fact  that  Porto  Eico  is  not 
a  foreign  country  is  decisive.     Brown,  Gray,  Shiras,  and  McKenna,  JJ.,  con- 
curred, holding,   also,   that  the  tax  was  imposed  upon  importations  into 
Porto  Eico,  and  not  upon  exports  from  the  United  States.     Fuller,  C.  J., 
and  Harlan,  Brewer,  and  Peckham,  JJ.,  dissented  upon  the  ground  that  the 
prohibition   forbids    duties   upon   exports   "  irrespective   of   their    destina- 
tion."    See  supra,  sec.  17. 

10  Pace  v.  Burgess,  92  U.  S.  372;  Turpin  v.  Burgess,  117  id.  504;  Cornell 
v.  Coyne,  192  id.  418. 


74  THE   REGULATION    OF    COMMERCE. 

duty  imposed  upon  bills  of  lading  covering  goods  exported 
is  a  tax  upon  the  articles  covered  by  the  bill  of  lading,  and, 
therefore,  a  tax  upon  exports.71 

Duties  upon  tonnage. 

38.  The  Constitution  in  express  terms  forbids  the  states 
to  impose  duties  on  tonnage.  Section  10  of  Article  I  of 
the  Constitution  declares  that  "no  state  shall,  without  the 
consent  of  Congress,  lay  any  duty  on  tonnage."  The 
word  "tonnage,"  as  applied  to  American  shipping,  means 
"their  entire  internal  capacity,  expressed  in  tons  of  one 
hundred  cubical  feet  each,  as  estimated  and  ascertained  by 
those  rules  of  admeasurement  and  computation72  which 
are  prescribed  by  the  acts  of  Congress.73  The  constitu- 
tional prohibition  prevents  state  taxation  of  "water-crafts 
plying  in  the  navigable  waters  of  the  state  ...  at  the 
rate  of  $1  per  ton  of  registered  tonnage. ' ' 74  Nor  can  a 
state  require  that  every  vessel  arriving  at  a  port  of  the 
state  shall  pay  to  the  port  wardens  a  fixed  sum  whether  the 
wardens  be,  or  be  not,  called  on  to  perform  any  services 
for  the  vessel ; 75  nor  compel  every  vessel  arriving  at  any 
quarantine  station  on  the  coast  of  the  state  to  pay  a  fixed 
sum  per  ton ; T6  nor  require  every  steamboat  mooring  in 
any  port  of  the  state  to  pay  a  sum  regulated  by  the  ton- 
nage of  the  boat ; 77  nor  require  all  vessels  entering  a 
certain  port  to  load  or  unload,  or  making  fast  to  any  wharf 
therein,  to  pay  a  sum  regulated  by  the  registered  tonnage 

71  Fairbank  v.  U.  S.,  181  U.  S.  283.     Harlan,  Gray,  White,  and  McKenna, 
JJ.,  dissented. 

72  State  Tonnage  Tax  Cases,  12  Wall.  204. 
73 13  Stat.  70;  Hid.  444. 

74  State  Tonnage  Tax  Cases,  12  Wall.  204. 

75  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31. 
76Peete  v.  Morgan,  19  Wall.  581. 

77  Cannon  v.  New  Orleans,  20  Wall.  577. 


POKT   DUES.  75 

of  the  vessel.78  In  each  one  of  these  cases,  the  taxation 
imposed  by  the  state  would  have  been  void  as  an  attempted 
regulation  of  interstate  commerce,  had  there  been  no 
express  prohibition  of  state  tonnage  duties. 

Port  dues. 

39.  Port  dues,  that  is,  charges  imposed  on  vessels  as 
instruments  of  commerce,  and  payable  by  all  vessels  enter- 
ing, remaining  in,  or  leaving  a  port,  by  reason  of  such 
entry,  stay,  or  departure,  and  without  regard  to  services 
rendered  to  or  received  by  the  vessel,  are  regulations  of 
commerce,  and  as  such  cannot  be  rightfully  imposed  under 
state  authority.79  Under  this  rule,  as  expounded  in 
Steamship  Co.  v.  Port  Wardens,80  a  charge  of  $5  per  vessel 
payable  to  the  wardens  "whether  called  on  to  perform  any 
service  or  not,  for  every  vessel  arriving  in"  the  port  of 
New  Orleans,  was  held  to  be  a  wrongful  imposition.  So 
also,  under  pretence  of  making  port  regulations,  a  state 
cannot  rightfully  vest  in  the  master  and  wardens  of  a  port, 
or  in  his  deputies,  a  monopoly  of  the  survey  of  the  hatches 
of  sea-going  vessels  coming  to  the  port,  or  of  damaged 
goods  on  such  vessels,  for  such  a  monopoly  is  a  burden 
upon,  and  therefore  a  regulation  of,  foreign  and  interstate 
commerce.81  The  prohibition  of  state  duties  on  tonnage82 
forbids  the  imposition  by  a  state  of  port  dues  in  the  form 
of  a  tax  of  $5  for  the  first  hundred  tons  and  1 1-2  cents  for 
each  additional  ton  payable  by  vessels  owned  in  another 
state  and  entering  a  harbour  of  the  taxing  state  in  the  pur- 
suit of  commerce,83  and  also  of  a  tax  similarly  propor- 

19 1.  S.  S.  Co.  v.  Tinker,  94  U.  S.  238. 

79  Such  dues  are  also  open  to  objection  as  duties  on  tonnage.     Section  36. 

"6  Wall.  31. 

81  Foster  v.  Master  and  Wardens  of  the  Port  of  New  Orleans,  94  U.  S.  246. 

82  Section  38. 

93  Peete  v.  Morgan,  19  Wall.  581. 


76  THE   KEGULATION    OF    COMMERCE. 

tioned  on  1 1  all  steamboats  which  shall  moor  or  land  in  any 
part  of  "  a  state  port.84 

Pilotage. 

40.  As  the  thirteen  original  states  were,  before  the 
ratification  of  the  Constitution,  existing  governments, 
they  had,  with  the  obvious  exception  of  New  Hampshire, 
enacted  laws  regulating  pilotage.  The  first  Congress 85 
declared  that  "all  pilots  .  .  .  shall  continue  to  be  regu- 
lated in  conformity  with  the  existing  laws  of  the  states 
respectively  wherein  such  pilots  may  be,  or  with  such 
laws  as  the  states  may  respectively  hereafter  enact  for 
the  purpose,  until  further  legislative  provision  shall  be 
made  by  Congress."  It  has  been  held  that,  pilotage 
being  a  subject  of  local  concern,  the  states  may  regulate 
it  so  long  as,  and  to  the  extent  that,  Congress  does  not 
legislate  with  regard  to  it.86  A  state  may  impose  upon 
a  vessel  refusing  to  take  an  offered  pilot  the  forfeiture  of 
half  pilotage  fees,  and  it  may  exempt  from  such  for- 
feiture vessels  engaged  in  a  particular  trade.87  The 
forfeiture  of  half  pilotage  fees  being,  not  in  the  nature  of 
a  penalty,  but  of  compensation  under  an  implied  con- 
tract,88 those  fees  must  be  paid  though  the  pilot's  services 
were  tendered  and  refused  before  the  vessel  had  come 
within  the  jurisdiction  of  the  state,89  and  though  the 
statute  authorizing  the  recovery  was  repealed  after  the 
services  of  the  pilot  were  tendered  and  refused,  but 
before  the  action  was  brought  to  recover  therefor.90  Such 

84  Cannon  v.  New  Orleans,  20  Wall.  577. 

85  Act  7th  August,  1789,  sec.  4,  1  Stat.  54. 

86  Cooley  v.  The  Board  of  Wardens,  12  How.  299. 

87  Ex  parte  McNiel,  13  WaU.  236 ;  Wilson  v.  McNamee,  102  U.  S.  572. 

88  Ex  parte  McNiel,  supra. 

89  Wilson  v.  McNamee,  supra. 

90  S.  S.  Co.  v.  Joliffe,  2  Wall.  450. 


KEGULATION    OF    NAVIGATION. 


77 


a  statute  may  impose  a  compulsory  obligation  on  foreign 
vessels.91  But  a  state  may  not  discriminate  in  its  pilot- 
age regulations,  as  by  requiring  vessels  of  some  states  to 
pay  half  pilotage  fees  and  exempting  vessels  of  other 
states  from  that  requirement;  nor  can  a  vessel  under  the 
control  of  a  pilot  licensed  under  the  laws  of  the  United 
States  be  required  to  take  a  pilot  under  the  laws  of  a 
state.92 

Regulation  of  navigation. 

41.  The  power  to  regulate  foreign  and  interstate  com- 
merce includes  the  control  of  navigation  in  the  prosecu- 
tion of  such  commerce.  The  United  States  may,  there- 
fore, license  vessels  navigating  waters  within  the  terri- 
torial jurisdiction  of  a  state  and  plying  between  ports  of 
different  states,  and  a  state  may  not  create  a  monopoly 
interfering  with  the  freedom  of  such  navigation.93  The 
United  States  may  require,  under  a  penalty,  the  inspec- 
tion and  licensing  of  a  steam  vessel94  engaged  in  the 
transportation  on  a  state 's  internal  waters  of  goods  from, 
or  destined  to,  points  in  other  states.95  A  state  may  not 
require  vessels  licensed  by  the  United  States  to  carry  on 
the  coasting  trade  and  plying  between  a  port  in  that  state 
and  ports  in  other  states,96  or  vessels  also  licensed  by  the 
United  States  and  employed  as  lighters  and  towboats  in 
a  port  of  a  state  in  aid  of  vessels  engaged  in  commerce, 
either  foreign  or  coastwise,97  to  make  return  to  the  local 
authorities  of  the  names,  places  of  residence,  and  re- 

91  The  China,  7  WaU.  53. 

92  Spraigue  v.  Thompson,  118  U.  S.  90. 

93  Gibbons  v.  Ogden,  9  Wheat.  1. 

94  Acts  7th  July,  1838,  5  Stat.  304;  30th  August,  1852,  10  Stat.  61. 
86  The  Daniel  Ball,  10  Wall.  557. 

86  Sinnot  v.  Davenport,  22  How.  227. 
97  Foster  v.  Davenport,  22  How.  244. 


78  THE   EEGULATION    OF    COMMERCE. 

spective  interests  of  the  owners  of  such  vessels.98  A 
state  may  not  require  "  those  engaged  in  the  transporta- 
tion of  passengers  among  the  states  to  give  to  all  persons 
traveling  within  that  state,  upon  vessels  employed  in 
such  business,  equal  rights  and  privileges  in  all  parts  of 
the  vessel  without  distinction  on  account  of  race  or 
colour/'  for  such  a  statute  acts  directly  upon  the  business, 
as  it  comes  into  the  state  from  without,  or  goes  out  from 
within."  On  the  other  hand,  a  state  may  grant  an  ex- 
clusive monopoly  of  the  navigation  of  an  internal  water- 
way which,  by  reason  of  a  lack  of  outlet  or  other 
connection  with  any  possible  system  of  interstate  or 
foreign  transportation,  is  available  only  for  the  internal 
commerce  of  the  state,  and  on  such  a  waterway  an  United 
States  coasting  enrollment  and  license  is  inoperative.100 

Port  regulations. 

42.  A  state  may  establish  port  regulations,  prescribing 
where  a  vessel  may  lie  in  harbour,  how  long  she  may  re- 
main there,  and  what  lights  she  must  show  at  night ;  thus 
in  The  James  Gray  v.  The  John  Fraser,1  an  admiralty 
cause  of  damage  resulting  from  a  collision  of  the  two 
vessels  in  Charleston  harbour,  that  one  was  held  to  be  in 
fault,  which  had,  by  its  failure  to  display  lights  in  con- 
formity with  the  regulations  of  the  port  imposed  under 
authority  of  the  state,  been  the  cause  of  the  collision. 
Taney,  C.  J.,  said,2  "Regulations  of  this  kind  are  neces- 
sary and  indispensable  in  every  commercial  port,  for  the 
convenience  and  safety  of  commerce,  and  the  local  au- 

98  The  case  of  New  York  v.  Miln,  11  Pet.  102,  though  cited,  and  relied  on, 
in  the  argument,  was  not  noticed  in  the  judgment  of  the  court. 

99  Hall  v.  De  Cuir,  95  U.  S.  485;  cf.  L.,  N.  O.  &  T.  Ky.  v.  Mississippi,  133 
id.  587;  C.  &  O.  Ey.  v.  Kentucky,  179  id.  388. 

100Veazie  v.  Moor,  14  How.  568. 

1  21  How.  184. 

2  P.  187. 


PORT   REGULATIONS.  79 

thorities  have  a  right  to  prescribe  at  what  wharf  a  vessel 
may  lie,  and  how  long  she  may  remain  there,  where  she 
may  unload  or  take  on  board  particular  cargoes,  where 
she  may  anchor  in  the  harbour,  and  for  what  time,  and 
what  description  of  light  she  shall  display  at  night  to  warn 
the  passing  vessels  of  her  position,  and  that  she  is  at  anchor 
and  not  under  sail.  They  are  like  to  the  local  usages  of 
navigation  in  different  ports,  and  every  vessel,  from  what- 
ever part  of  the  world  she  may  come,  is  bound  to  take 
notice  of  them  and  conform  to  them.  And  there  is  nothing 
in  the  regulations  referred  to  in  the  port  of  Charleston, 
which  is  in  conflict  with  any  law  of  Congress  regulating 
commerce,  or  with  the  general  admiralty  jurisdiction  con- 
ferred on  the  courts  of  the  United  States."  Ostensibly 
on  the  same  principle,  it  was  held  in  New  York  v.  Miln,3 
that  a  state  may  require  under  a  penalty  the  master  of 
every  passenger-carrying  vessel  on  arriving  at  any  port 
within  the  state  to  report  to  the  state  authorities  the  name, 
place  of  birth,  last  legal  settlement,  age,  and  occupation 
of  every  passenger,  the  statute  under  consideration  being 
one  enacted  by  New  York  in  1824,  and  the  court  affirming 
its  validity  on  the  ground  that  it  was  a  regulation,  not  of 
commerce,  but  of  police,  and  as  such  falling  within  the 
reserved  powers  of  the  state.  The  authority  of  the  case 
is,  however,  much  shaken  by  the  admirably  reasoned  dis- 
senting judgment  of  Story,  J.,  with  whose  conclusions 
Marshall,  C.  J.,  concurred,4  and  the  result  reached  by  the 
court  is  clearly  inconsistent  with  the  later  cases  of 
Sinnot  v.  Davenport,5  Foster  v.  Davenport,6  and  the  yet 
later  cases,  which  hold  that  a  state  cannot,  directly  or 


8 11  Pet.  102. 

*P.  161. 

5  22  How.  227. 

6  22  How.  224  j  supra,  Section  41. 


80  THE   REGULATION    OF    COMMERCE. 

indirectly,  tax  the  transportation  of  passengers  coming 
from  foreign  countries.7 

Quarantine. 

43.  As  Brown,  J.,  said  in  Bartlett  v.  Lockwood,8 
"While,  under  its  power  to  regulate  foreign  and  interstate 
commerce,  the  authority  of  Congress  to  establish  quaran- 
tine regulations,  and  to  protect  the  country  as  respects 
its  commerce  from  contagious  and  infectious  diseases,  has 
never  in  recent  years  been  questioned,  such  power  has  been 
allowed  to  remain  in  abeyance ;  and  Congress,  doubtless  in 
view  of  the  different  requirements  of  different  climates 
and  localities,  and  of  the  difficulty  of  framing  a  general 
law  upon  the  subject,  has  elected  to  permit  the  several 
states  to  regulate  the  matter  of  protecting  the  public  health 
as  to  themselves  seemed  best."  A  state  may,  therefore, 
prohibit  the  entry  into  its  territory  of  physically  infected 
persons  or  goods,  and  it  may  provide  for  an  examination 
of  all  persons  or  goods  coming  into  its  territory  in  order 
to  determine  whether  or  not  they  be  physically  infected, 
and  to  defray  the  expenses  of  such  sanitary  examinations 
it  may  collect  charges,  provided  that  such  charges  be  not 
in  the  form  of  duties  on  tonnage  and  that  they  do  not  un- 
necessarily interfere  with  foreign  or  interstate  commerce. 
A  state  may,  therefore,  require  all  vessels  coming  into  its 
ports  to  stop  at  designated  quarantine  stations,  submit  to 
a  sanitary  examination,  and  pay  therefor  fees  rated  in 
amount  in  proportion  to  the  maritime  class  to  which  the 
vessel  may  belong  and  equal  in  amount  for  all  vessels  of 
the  same  class.9  On  the  other  hand,  a  state  cannot,  for  the 
purpose  of  defraying  the  expenses  of  enforcing  her 

''Infra,  Section  526. 
8 160  U.  S.  357,  361. 

"Morgan  v.  Louisiana,  118  U.  S.  455;  Bartlett  v.  Lockwood,  160  id.  357. 
See  also  C.  F.  D.  N.  v.  Louisiana,  186  id.  380. 


FERRIES.  81 

quarantine  regulations,  impose  on  vessels  entering  her 
harbours  in  the  prosecution  of  commerce,  taxes  based  upon 
the  tonnage  of  the  vessel.10  A  state  may  enact  statutes 
declaring  that  persons  transporting,  or  having  in  their 
possession,  diseased  animals  are  to  be  held  liable  for  any 
damage  caused  by  the  spread  of  disease  by  such  animals,11 
and  a  state  may  authorize  its  sanitary  authorities  to  ex- 
clude from  its  territory  animals  imported  from  localities 
in  other  states  wherein  those  sanitary  authorities  may 
determine  epidemic  diseases  among  such  animals  to 
exist ; 12  but  a  state  may  not,  under  the  pretext  of  quaran- 
tine laws,  regulate  interstate  commerce,  as  by  prohibiting 
the  driving  or  conveyance  of  Texan,  Mexican,  and  Indian 
cattle  into  the  state  between  the  1st  of  March  and  the  1st  of 
November  in  any  year,13  or  by  prohibiting  the  sale  of  meat 
which  has  not  been  inspected  on  the  hoof  within  the  state.14 
The  test  is,  as  stated  by  McKenna,  J.,  "whether  the  police 
power  of  the  state  has  been  exercised  beyond  its  province, 
exerted  to  regulate  interstate  commerce,  exerted  to  exclude 
without  discrimination  the  good  and  the  bad,  the  healthy 
and  the  diseased,  and  to  an  extent  beyond  what  is  neces- 
sary for  any  proper  quarantine.  .  .  .  The  prevention  of 
disease  is  the  essence  of  a  quarantine  law.  Such  a  law  is 
directed  not  only  to  the  actually  diseased,  but  to  what  has 
become  exposed  to  disease/' 15 

Ferries. 

44.  A  ferry  is  "a  franchise  grantable  by  the  state,  to  be 
exercised  within  such  limits  and  under  such  regulations  as 

10Peete  v.  Morgan,  19  Wall.  581. 

"Kimmish  v.  Ball,  129  U.  S.  217;  M.,  K.  &  T.  By.  v.  Haber,  169  id.  613. 
"Easmussen  v.  Idaho,  181  U.  S.  198;  Smith  v.  S.  L.  &  S.  W.  E.,  ibid.  248. 
See  also  Eeid  v.  Colorado,  187  id.  137. 
18  E.  Co.  v.  Husen,  95  U.  S.  465. 
"Minnesota  v.  Barber,  136  U.  S.  313. 
15  Smith  v.  S.  L.  &  S.  W.  Ey.,  181  U.  S.  248,  255. 
6 


82  THE   REGULATION    OF    COMMEECE. 

may  be  required  for  the  safety,  comfort,  and  convenience 
of  the  public, "  16  and  such  a  franchise  confers  the  right  of 
embarking  and  landing  passengers  and  freight  at  desig- 
nated points  on  a  water  bank.17  Such  a  franchise  is  neces- 
sarily exclusive.18  The  state  which  grants  the  franchise 
may  annex  conditions  to  its  exercise,  and  may,  therefore, 
tax  the  ferry  and  its  appliances.  It  may  also  tax  the  boats 
and  other  personal  property  of  the  owner  of  the  ferry,  if 
that  owner  be  by  residence  subject  to  its  jurisdiction.19 
On  the  other  hand,  a  state  cannot  tax  ferry  boats  which 
only  come  within  its  jurisdiction  in  the  movement  of  inter- 
state commerce.20 

Bridges  and  dams. 

45.  Navigability  in  fact  is  the  test  of  navigability  in  law. 
If  a  lake,  river,  or  stream  "be  capable  in  its  natural  state 
of  being  used  for  purposes  of  commerce,  no  matter  in  what 
mode  the  commerce  be  conducted,  it  is  navigable  in  fact, 
and  becomes  in  law  a  public  river  or  highway. ' ' 21  As 
navigable  waters  are  no  longer  the  sole,  nor,  indeed,  the 
main  channels  of  commerce,  and  as  that  volume  of  trade 
which  is  carried  over  such  waters  by  bridges  or  viaducts 
is  in  many  cases  entitled,  by  reason  of  its  magnitude,  to 
greater  consideration  than  that  which  is  moved  in  boats 
upon  the  water,  it  must  be  determined  in  the  case  of  any 
bridge,  or  other  obstruction,  whose  erection  or  the  method 
of  whose  construction  is  called  into  question,  whether  or 

16  G.  F.  Co.  v.  Pennsylvania,  114  U.  S.  196,  per  Field,  J. 

17 ' '  A  ferry  is  in  respect  of  the  landing  place,  and  not  of  the  water : ' ' 
Vin.  Abr.  Vol.  XIII,  P.  208,  Title  "  Ferry. " 

"Fanning  v.  Gregoire,  16  How.  524;  Conway  v.  Taylor,  1  Bl.  603. 

18  W.  F.  Co.  v.  East  St.  Louis,  107  U.  S.  365;  T.  Co.  v.  Wheeling,  99  id. 
273. 

20  St.  Louis  v.  W.  F.  Co.,  11  Wall.  423;  G.  F.  Co.  v.  Pennsylvania,  114 
U.  S.  196.     See  also  St.  Clair  County  v.  I.  S.  &  C.  T.  Co.,  192  id.  454. 

21  The  Montello,  20  Wall.  430,  441;  Leovy  v.  U.  S.,  177  U.  S.  621;  The 
Daniel  BaU,  10  Wall.  557. 


BKIDGES   AND   DAMS.  83 

not  the  public  interest  will  be  promoted  by  its  erection  or 
by  its  construction  in  the  particular  manner,  and  such  a 
matter  is  primarily  one  for  the  decision  of  the  legislature, 
rather  than  of  any  court.  As  the  subject  is  that  of  pos- 
sible obstruction  of  highways  of  foreign  or  interstate  com- 
merce, final  jurisdiction  is  necessarily  vested  in  Con- 
gress,22 which  may  forbid,  or  permit  upon  conditions,  the 
erection  of  a  bridge  under  state  authority,23  or  may  legal- 
ize a  bridge  already  erected,  pending  a  suit  to  enjoin  its 
construction,24  or  even  after  the  Supreme  Court  of  the 
United  States  has  entered  a  final  decree  declaring  the 
bridge  as  constructed  to  be  an  unlawful  obstruction ; 25  or 
may  reserve  for  future  congressional  action  the  approval 
of  the  construction  of  any  bridge  under  an  act  of  the  legis- 
lature of  any  state  over  or  in  any  ' l  stream  or  other  navi- 
gable water  not  wholly  within  the  limits  of  such  state, ' '  and 
may  delegate  to  the  Secretary  of  War  the  power  of  approv- 
ing bridges  and  other  obstructions  in  navigable  waters 
wholly  within  the  limits  of  any  one  state,  and  may  prohibit 
all  obstructions  not  so  approved.26  This  congressional 
legislation  does  not  deprive  the  states  of  authority  to 
bridge  or  otherwise  obstruct  intraterritorial  streams, 
but  only  creates  ' '  an  additional  and  cumulative  remedy  to 
prevent  such  structure  although  lawfully  authorized,  from 
interfering  with  commerce,"27  nor  does  it  vest  in  the 
Secretary  of  War  1 1  the  right  to  determine  when  and  where 
a  bridge  may  be  built."28  Therefore,  subject  to  the 

22  N.  B.  Co.  v.  U.  S.,  105  U.  S.  470;  U.  S.  i>.  B.  B.  B.  Co.,  176  id.  211. 

23  N.  B.  Co.  v.  U.  S.,  105  U.  S.  470. 

24  The  Clinton  Bridge,  10  Wall.  454. 

26  Pennsylvania  v.  W.  &  B.  B.  Co.,  18  How.  421. 

28  Act  of  13th  July,  1892,  c.  158,  27  Stat.  88,  110. 

27  Per  White,  J.,  in  L.  S.  &  M.  S.  Ey.  v.  Ohio,  165  U.  S.  365,  369. 

28  Ibid.  368.     See  also  Cummings  v.  Chicago,  188  U.  S.  410;  Montgomery 
v.  Portland,   190  id.  89,  which  decide  that  under  existing  legislation  the 
right  to  construct  a  wharf  or  dock  in  a  navigable  water  of  the  United 


84  THE   REGULATION    OF    COMMEECE. 

paramount  authority  of  the  United  States,  as  exercised  by 
Congress,  or,  under  the  legislation  now  in  force,  as  dele- 
gated to  the  Secretary  of  War,  a  state  may  partially  ob- 
struct by  bridges,  or  wholly  obstruct  by  dams,  navigable 
waters  which  are  wholly  within  its  limits.29  The  power  of 
bridging  their  navigable  waters  is  not  affected  in  the  states 
carved  out  of  the  Northwest  Territory  by  the  provision  in 
the  ordinance  of  1787  for  the  free  navigation  of  the  Missis- 
sippi and  the  St.  Lawrence  "without  any  tax,  duty,  or 
impost  therefor,"30  nor  in  the  states  of  California, 
Louisiana,  or  Oregon  by  the  provisions  of  the  acts  of  Con- 
gress admitting  them  to  the  union  and  declaring  their 
navigable  waters  to  be  forever  free.31  A  state  cannot  law- 
fully appropriate  water  for  its  non-navigable  streams  to 
such  an  extent  as  to  impair  the  navigation  of  its  navigable 
streams.32  In  the  case  of  the  bridge  spanning  the  Ohio 
river  and  connecting  the  city  of  Cincinnati,  in  the  state 
of  Ohio,  with  the  town  of  Covington,  in  the  state  of  Ken- 
tucky, it  was  held  by  the  majority  of  the  court33  that  the 

States  wholly  within  the  limits  of  a  state  depends  upon  the  consent  of  the 
state  in  addition  to  the  consent  of  the  federal  government. 

29  Willson  v.  The  B.  B.  C.  M.  Co.,  2  Pet.  245 ;  Pennsylvania  v.  The  W.  & 
B.  B.  Co.,  9  How  647,  11  id.  528,  13  id.  518,  18  id.  421;  M.  &  M.  E.  v. 
Ward,  2  Bl.  485 ;  The  Albany  Bridge  Case,  2  Wall.  403 ;  The  Passaic  Bridge 
Case,  3  Wall.  782;  Oilman  v.  Philadelphia,  ibid.  713;  Pound  v.  Turck, 
95  U.  S.  459;  Escanaba  Co.  v.  Chicago,  107  id.  678;  CardweU  v.  A.  B.  Co., 
113  id.  205;  Hamilton  v.  V.,  S.  &  P.  E.,  119  id.  280;  Huse  v.  Glover,  ibid. 
543;  W.  B.  Co.  v.  Hatch,  125  id.  1;  L.  S.  &  M.  S.  E.  v.  Ohio,  165  id.  365; 
U.  S.  v.  B.  B.  B.  Co.,  176  id.  211;  Eider  v.  U.  S.,  178  id.  251;  Leovy 
v.  U.  S.,  177  id.  621. 

80  Escanaba  Co.  v.  Chicago,  107  U.  S.  678;  Huse  v.  Glover,  119  id.  543; 
Sands  v.  M.  E.  I.  Co.,  123  id.  288. 

81  CardweU  v.  A.  B.  Co.,  113  U.  S.  205;  Hamilton  v.  V.,  S.  &  P.  E.,  119 
id.  280;  W.  B.  Co.  v.  Hatch,  125  id.  1. 

32  U.  S.  v.  E.  G.  D.  &  I.  Co.,  174  U.  S.  690. 

88  C.  &  C.  B.  Co.  v.  Kentucky,  154  TJ.  S.  204;  Brown,  Harlan,  Brewer, 
Shiras,  and  Jackson,  JJ.,  concurring  in  the  judgment  and  also  in  the 
opinion,  and  Fuller,  C.  J.,  and  Field,  Gray,  and  White,  JJ.,  concurring  in 
the  judgment  but  not  in  the  opinion. 


IMPKOVEMENTS   OF    NAVIGATION.  85 

traffic  across  the  river  was  interstate  commerce,  that  the 
bridge  was  an  instrument  of  that  commerce,  and  that  Con- 
gress possesses  the  power  to  fix  the  charges  for  the  traffic 
over  the  bridge,  the  authority  of  the  state  being  limited 
to  fixing  tolls  exclusively  within  its  territory;  but  the 
minority  of  the  court  held  that,  as  Congress  had  made  no 
provisions  as  to  the  tolls,  it  had  thereby  manifested  its 
intention  that  the  rates  of  toll  should  be  as  established  by 
the  two  states.  It  has  also  been  held  that  a  state  may  tax 
so  much  of  an  interstate  bridge  as  is  within  its  territory,34 
and  that  a  state  may  tax  the  capital  stock  of  an  interstate 
bridge  company  incorporated  by  it.35 

Improvements  of  navigation. 

46.  The  United  States  may,  in  the  discretion  of  Con- 
gress, authorize  or  prohibit  improvements  in  the  water- 
ways of  foreign  or  interstate  commerce.  It  may  change  the 
established  channels  of  rivers,36  and  dredge  harbours,37 
and  the  action  of  the  United  States  is  exclusive  of  any 
right  to  the  contrary  asserted  under  state  authority.  On 
the  other  hand,  a  state  may  exercise  exclusive  control  over 
such  waterways  as  are  wholly  within  its  territory,  and  are 
not  used  in  the  movement  of  foreign  or  interstate  com- 
merce.38 The  principle  controlling  the  cases  on  this  sub- 
ject is  nowhere  more  clearly  stated  than  by  Field,  J.,  who 
said,  in  County  of  Mobile  v.  Kimball,39 ' t  The  uniformity  of 
commercial  regulations,  which  the  grant  to  Congress  was 
designed  to  secure  against  conflicting  state  provisions,  was 
necessarily  intended  only  for  cases  where  such  uniformity 

84  P.,  C.,  C.  &  S.  L.  By.  v.  Board  of  Public  Works,  172  U.  S.  32. 

85  K.  &  H.  B.  Co.  v.  Illinois,  175  U.  S.  626. 
88  South  Carolina  v.  Georgia,  93  U.  S.  4. 
"Wisconsin  v.  Duluth,  96  U.  S.  379. 

38  Veazie  v.  Moor,  14  How.  568 ;  Withers  v.  Buckley,  20  id.  84. 
"102  U.  S.  691,  698. 


86  THE   REGULATION    OF    COMMERCE. 

is  practicable.  Where  from  the  nature  of  the  subject  or 
the  sphere  of  its  operations  the  case  is  local  and  limited, 
special  regulations  adapted  to  the  immediate  locality  could 
only  have  been  contemplated.  State  action  upon  such 
subjects  can  constitute  no  interference  with  the  com- 
mercial power  of  Congress,  for  when  that  acts  the  state 
authority  is  superseded.  Inaction  of  Congress  upon  these 
subjects  of  a  local  nature  or  operation,  unlike  its  inaction 
upon  matters  affecting  all  the  states  and  requiring  uni- 
formity of  regulation,  is  not  to  be  taken  as  a  declaration 
that  nothing  shall  be  done  with  respect  to  them,  but  it  is 
rather  to  be  deemed  a  declaration  that  for  the  time  being, 
and  until  it  sees  fit  to  act,  they  may  be  regulated  by  state 
authority.  The  improvement  of  harbours,  bays,  and 
navigable  rivers  within  the  states  falls  within  this  last 
category  of  cases.  The  control  of  Congress  over  them  is 
to  insure  freedom  in  their  navigation,  so  far  as  that  is 
essential  to  the  exercise  of  its  commercial  power.  Such 
freedom  is  not  encroached  upon  by  the  removal  of  ob- 
structions to  their  navigability  or  by  other  legitimate 
improvements.  The  states  have  as  full  control  over  their 
purely  internal  commerce  as  Congress  has  over  commerce 
among  the  several  states  and  with  foreign  nations ;  and  to 
promote  the  growth  of  that  internal  commerce  and  insure 
its  safety  they  have  an  undoubted  right  to  remove  obstruc- 
tions from  their  harbours  and  rivers,  deepen  their  chan- 
nels, and  improve  them  generally,  if  they  do  not  impair 
their  free  navigation  as  permitted  under  the  laws  of  the 
United  States,  or  defeat  any  system  for  the  improvement 
of  their  navigation  provided  by  the  general  government. ' ' 
A  state  may,  therefore,  if  Congress  does  not  otherwise 
direct,  deepen  and  widen  the  harbours  on  its  coast,40  con- 
struct dams  and  locks  in  navigable  rivers,  and  levy  tolls 

40  County  of  Mobile  v.  Kimball,  102  U.  S.  691. 


WHARVES   AND   PIERS.  87 

upon  shipping  using  the  improved  waterway,41  but  a  state 
may  not  levy  charges  for  an  improved  waterway  upon  ves- 
sels whose  draught  is  so  light  that  the  improvement  has 
been  of  no  benefit  to  such  vessels.42 

Wharves  and  piers. 

47.  A  state  may  build  wharves  on  navigable  waters  and 
collect  reasonable  tolls  for  the  use  thereof,43  for  such  tolls, 
not  being  impositions  by  virtue  of  sovereignty,  are  not 
taxes  but  are  charges  for  services  rendered  or  for  con- 
veniences provided,   and  they  are  claimed  in  right  of 
proprietorship.     Whether  wharfage  tolls  be,  or  be  not,  in 
fact  reasonable  is  not  a  question  of  federal  law,  nor  as 
such  cognizable  in  a  court  of  the  United  States  in  cases 
other  than  those  in  which  the  federal  court  has  acquired 
jurisdiction  by  reason  of  the  citizenship  of  the  parties.44 
Nevertheless,  the  right  of  a  state  to  build  wharves  and 
charge  tolls  therefor  cannot  be  so  exercised  as  to  dis- 
criminate in  favour  of  the  products  of  its  own  territory 
and  against  those  of  other  states.45 

State  duties  upon  imports  and  exports. 

48.  "Imports"  are  goods  brought  into  a  state  from  a 
foreign  country,  and  goods  brought  from  one  state  into 
another  are  not  "imports."46    As  the  power  vested  in 
the  United  States  to  regulate  commerce  with  foreign 
nations  includes  the  power  to  impose  duties  on  the  im- 
portation of  foreign  goods,  and  to  license,  on  the  payment 

41  Huse  v.  Glover,  119  U.  S.  543;  Sands  v.  M.  E.  I.  Co.,  123  id.  288;  L.  & 
P.  Co.  v.  Mullen,  176  id.  126. 

42  Harman  v.  Chicago,  147  U.  S.  396. 

43  P.  Co.  v.  Keokuk,  95  U.  S.  80;  P.  Co.  v.  St.  Louis,  100  id.  423;  Vicks- 
burg  v.  Tobin,  iUd.  430;  P.  C.  v.  Catlettsburg,  105  id.  559. 

44  T.  Co.  v.  Parkersburg,  107  U.  S.  691 ;  O.  P.  Co.  v.  Aiken,  121  id.  444. 

45  Guy  v.  Baltimore,  100  U.  S.  434;  infra,  Section  50. 
40  A.  S.  &  W.  Co.  v.  Speed,  192  U.  S.  500. 


88  THE   REGULATION    OF    COMMERCE. 

of  those  duties,  the  sale  of  the  imported  goods  within  any 
state,  and  as  there  is  an  express  constitutional  prohibition 
of  state  duties  on  imports  and  exports,  excepting  such 
duties  as  may  be  absolutely  necessary  for  executing  the 
inspection  laws  of  the  state,  it  follows  that  a  state  cannot 
require  under  a  penalty  importers  of  foreign  goods  by  the 
bale  or  package,  and  vendors  of  the  same  by  wholesale,  to 
take  out  a  license  as  a  prerequisite  to  the  sale  of  such  im- 
ported goods  in  the  original  form  and  package  in  which 
they  are  imported,  and  before  they  become  incorporated 
with  the  mass  of  property  in  the  state.47  On  the  same 
principle,  a  state  cannot  impose  an  ad  valorem  tax  upon 
imported  goods  remaining  in  their  original  cases  in  the 
hands  of  the  importer,  even  though  a  similar  tax  be  im- 
posed on  all  merchandise  in  the  state ; 48  and  a  state  cannot 
tax  an  auctioneer's  sales  of  imported  goods  in  their  orig- 
inal cases  and  for  the  account  of  the  importers  thereof.49 
Yet  separately  wrapped  packages  of  foreign  dry  goods 
brought  into  a  state  in  wooden  cases  are  subject  to  state 
taxation  upon  their  being  taken  from  their  cases.50 
Merchandise  brought  from  a  foreign  country  and  which 
by  the  terms  of  the  contract  of  purchase  is  not  to  be  at  the 
risk  of  the  purchaser  until  delivered  to  him  in  the  port  of 
entry,  does  not  come  within  the  constitutional  meaning  of 
the  term  "imports, "  and  such  goods,  though  in  their  orig- 
inal packages,  may  be  taxed  by  the  state  in  whose  port 
their  purchase  is  completed  by  delivery.51 

47  Brown  v.  Maryland,  12  Wheat.  419. 
"Low  v.  Austin,  13  Wall.  29. 

48  Cook  v.  Pennsylvania,  97  U.  S.  566. 

60  May  v.  New  Orleans,  178  U.  S.  496.  Almy  v.  California,  24  How.  169, 
is  explained  in  Woodruff  v.  Parham,  8  Wall.  123,  138,  and  should  have  been 
decided  upon  the  ground  that  the  tax  in  question  was  a  tax  upon  the  trans- 
portation of  goods  from  one  state  to  another,  and,  therefore,  a  regulation 
of  commerce  and  as  such  void. 

51  Waring  v.  The  Mayor,  8  Wall.  110. 


STATE   INSPECTION   LAWS.      .  89 

State  inspection  laws. 

49.  The  object  of  inspection  laws  is  to  improve  the  qual- 
ity of  articles  produced  by  the  labour  of  a  country,  to  fit 
them  for  exportation,  or,  it  may  be,  for  domestic  use. 
They  act  upon  the  subject  before  it  becomes  an  article  of 
foreign  commerce,  or  of  commerce  among  the  states,  and 
prepare  it  for  that  purpose.52  Such  laws  prescribe  some 
or  all  of  certain  requisites,  such  as  the  quality  of  the 
article,  the  form,  capacity,  dimensions,  weight,  or  marking 
of  the  package,  and,  to  enforce  compliance  with  their 
requirements,  they  provide  for  supervision  by  public 
officers.53  Therefore,  a  state  may  prohibit  under  a  pen- 
alty the  exportation,  without  inspection,  of  articles  pro- 
duced in  the  state,  such  as  tobacco,54  and  may  require  the 
official  measurement  of  coal,55  and  lumber,56  and  the  in- 
spection of  fertilizers.57  The  words  "inspection  laws," 
"  imports, "  and  "  exports, "  as  used  in  the  Constitution, 
having  exclusive  reference  to  property,  as  distinguished 
from  persons,58  a  state  per  capita  tax  on  immigrants  can- 
not be  sustained  as  a  means  of  executing  the  inspection 
laws  of  a  state.59  But  a  state  may  not,  under  the  pretence 
of  an  inspection  law,  regulate  interstate  commerce,  as  by 
requiring  an  inspection  by  a  public  officer,  upon  payment 
of  fees,  of  all  meat  slaughtered  more  than  one  hundred 
miles  from  the  place  of  sale,  when  there  is  no  such  require- 
ment with  regard  to  meat  slaughtered  at  a  less  distance 
from  the  place  of  sale ; 60  or  by  requiring  an  inspection  of 

"  Gibbons  v.  Ogden,  9  Wheat.  1,  203,  per  Marshall,  C.  J. 

"Turner  v.  Maryland,  107  IT.  S.  55. 

54  Turner  v.  Maryland,  ubi  supra. 

"P.  &  S.  C.  Co.  v.  Louisiana,  156  U.  S.  590. 

88  L.  &  P.  Co.  v.  Mullen,  176  U.  S.  126. 

•TP.  G.  Co.  v.  North  Carolina,  171  U.  S.  345. 

«8  Crandall  v.  Nevada,  6  Wall.  35. 

"People  v.  C.  G.  T.,  107  U.  S.  59. 

M  Brimmer  v.  Eebman,  138  U.  S.  78. 


90  THE   REGULATION    OF    COMMERCE. 

all  flour  ground  without  the  state,  when  there  is  no  such 
requirement  as  to  flour  ground  within  the  state ; 61  or  by 
prohibiting  the  sale  of  meat  which  has  not  been  inspected 
on  the  hoof  within  the  state ; 62  or  by  requiring,  as  a  pre- 
requisite to  the  shipment  of  alcoholic  liquors  into  the  state, 
an  analysis  by  the  state  chemist  of  a  sample  thereof.63 

Taxation  discriminating  against  goods  from  other  states. 

50.  A  state  may  tax  goods  brought  in  from  another  state, 
though  in  the  hands  of  the  consignee  and  in  the  original 
packages ; 64  but  a  state  cannot  by  taxation  discriminate 
against  either  the  natural  products  of,  or  the  goods  manu- 
factured in,  other  states,  whether  by  requiring  of  every 
non-resident  trader  as  a  prerequisite  to  his  sales  of  other 
than  agricultural  products  of  or  articles  manufactured  in 
the  state,  a  higher  license  fee  than  is  required  of  traders 
in  domestic  goods ; 65  or  by  requiring  payment  of  a  license 
fee  by  vendors  of  merchandise  "not  the  growth,  produce, 
or  manufacture ' '  of  the  state,  no  license  fee  being  required 
of  vendors  of  domestic  merchandise ; 66  or  by  charging 
vessels  laden  with  the  products  of  other  states  for  the  use 
of  public  wharves,  when  vessels  laden  with  the  products 
of  the  state  are  permitted  to  use  such  wharves  without 
charge ; 67  or  by  requiring  a  non-resident  merchant  desir- 
ing to  sell  by  sample  in  the  state  to  pay  for  a  license  to  do 
that  business  a  sum  to  be  ascertained  by  the  amount  of  his 

01  Voight  v.  Wright,  141  U.  S.  62. 

62  Minnesota  v.  Barber,  136  U.  S.  313. 

63  Vance  v.  W.  A.  V.  Co.,  170  U.  S.  438. 

64  Woodruff  v.  Parham,  8  Wall.  123 ;  Brown  v.  Houston,  114  U.  S.  622; 
Emert  v.  Missouri,  156  id.  296. 

65  Ward  v.  Maryland,  12  Wall.  418.     Bradley,  J.,  concurred,  but  held  that 
the  license  required  would  be  equally  void  if  it  imposed  upon  residents 
the  same  burden  for  selling  goods  as  it  imposed  upon  non-residents,  for 
it  would  be  in  fact  a  duty  upon  importations  from  one  state  to  another. 

"Welton  v.  Missouri,  91  U.  S.  275;  Webber  v.  Virginia,  103  id.  344. 
•TGuy  v.  Baltimore,  100  U.  S.  434. 


TAXING  GOODS  FROM  OTHER  STATES.          91 

stock  in  trade  in  the  state  where  he  resides,  and  in  which 
he  has  his  principal  place  of  business ; 68  or  by  imposing  a 
tax  on  each  selling  agent  of  a  foreign  dealer  while  not 
imposing  a  tax  upon  the  selling  agents  of  a  domestic 
dealer ; 69  or  by  imposing  a  license  tax  upon  wholesale 
dealers  in  brewed  or  malt  liquors  but  exempting  from  such 
tax  all  dealers  paying  a  lesser  tax  for  the  privilege  of 
manufacturing  liquors  within  the  state ; 70  or  by  statutes 
under  the  guise  of  inspection  laws  imposing  discriminating 
taxes  upon  products  of  other  states,  as,  for  instance,  by 
requiring  that  no  meat  slaughtered  one  hundred  miles  or 
more  from  the  place  of  sale  should  be  offered  for  sale  un- 
less previously  inspected  by  a  local  official  and  a  fee  paid 
therefor,  while  requiring  no  inspection  to  be  made  of  meat 
slaughtered  within  one  hundred  miles  of  the  place  of 
sale ; 71  or  by  requiring  flour  brought  into  the  state  and 
offered  for  sale  therein  to  be  inspected  by  a  state  official 
and  a  fee  paid  therefor,  while  requiring  no  inspection  to 
be  made  of  flour  produced  within  the  state.72  Nor  can  a 
state,  under  the  act73  which  was  passed  to  legislatively 
overrule  the  Original  Package  Case,74  establish,  so  far  as 
regards  the  sale  of  intoxicating  liquors,  a  system  which 
would  in  effect  discriminate  between  interstate  and 
domestic  commerce  in  commodities  whose  manufacture 
and  use  are  permitted  by  the  state.75  There  is  no  unlaw- 
ful discrimination  in  requiring  prepayment  of  the  tax  by 
vendors  of  the  products  of  other  states,  while  vendors  of 
domestic  goods  are  permitted  to  pay  the  same  tax  on  re- 

w  Corson  v.  Maryland,  120  U.  S.  502,  506. 
w  Walling  v.  Michigan,  116  U.  S.  446. 
"  Lyng  v.  Michigan,  135  U.  S.  161. 

71  Brimmer  v.  Eebman,  138  U.  S.  78. 

72  Voight  v.  Wright,  141  U.  S.  62. 

78  Act  of  8th  August,  1890,  26  Stat.  313,  c.  728. 
74Leisy  v.  Hardin,  135  U.  S.  100. 
75  Scott  v.  Donald,  165  U.  S.  58,  100. 


92  THE   REGULATION    OF    COMMERCE. 

turns  from  time  to  time.76  On  the  other  hand,  non-dis- 
criminating taxation  may  lawfully  be  imposed  by  a  state, 
as  where  a  state  levies  a  tax  upon  all  peddlers  of  sewing 
machines  without  regard  to  their  place  of  manufacture,77 
or  by  taxing  the  gross  yearly  commissions  of  all  general 
agents  selling  on  commissions.78  A  state  which  taxes  the 
traffic  in  any  intoxicating  liquors  at  any  place  other  than 
the  place  of  manufacture  does  not  impose  a  discriminating 
tax  upon  a  dealer  in  liquors  manufactured  in  another 
state.79  Of  course,  one  who  claims  under  these  cases  ex- 
emption from  the  burden  of  state  taxation  must  prove  his 
right  and  must  show  a  discrimination  in  taxation  as 
against  goods  brought  in  from  another  state.80  The  cases 
that  have  been  cited  forbid  only  that  state  taxation  which 
discriminates  in  favour  of  the  products  of  the  taxing  state 
and  against  goods  brought  in  from  another  state,  but  there 
are  other  cases  which  rest  upon  the  broad  principle  that  a 
state  cannot  impose  any  tax  or  other  restriction  "upon  the 
citizens  or  inhabitants  of  other  states  for  selling,  or  seeking 
to  sell,  their  goods  in  such  state  before  they  are  introduced 
therein, ' ' 81  the  ground  of  decision  being,  that  such  a  tax 
does  not  subject  to  taxation  goods  brought  from  another 
state  in  common  with  the  mass  of  property  in  the  taxing 
state,  but  that,  on  the  other  hand,  such  a  tax  stands  as  a 
barrier  in  the  way  of  the  manufacturer  or  merchant  of 
another  state  and  hinders  him  in  the  introduction  of  his 
goods  into  the  taxing  state.82  It  is  no  answer  to  this  to 

79  Hinson  v.  Lett,  8  Wall.  148. 

77  M.  Co.  v.  Gage,  100  U.  S.  676;  Emert  v.  Missouri,  156  id.  296;  Bash 
v.  Farley,  159  id.  263. 

"Ficklen  v.  Shelby  County  Taxing  District,  145  TJ.  S.  1. 

79  B.  B.  Co.  v.  Brister,  179  U.  S.  445. 

80Downham  v.  Alexandria  Council,  10  Wall.  173;  Brennan  v.  Titusrille, 
153  U.  S.  289 ;  Stockard  v.  Morgan,  185  id.  27. 

81  Bobbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489,  494. 

^Asher  v.  Texas,  128  U.  S.  129;  Brennan  v.  Titusville,  153  id.  289; 
N.  &  W.  By.  v.  Sims,  191  id.  441;  of.  A.  S.  &  W.  Co.  v.  Speed,  192  id.  500. 


THE   OBIGINAL   PACKAGE   DOCTRINE.  93 

say,  as  Waite,  C.  J.,  and  Field  and  Gray,  JJ.,  said,83  that 
if  citizens  of  other  states  cannot  be  taxed  in  the  same  way 
for  the  same  business,  there  will  be  discrimination  against 
the  inhabitants  of  the  taxing  state  and  in  favour  of  those 
of  other  states,  for  the  conclusive  reply  is  that  while  a  state 
may  without  discrimination  tax  its  domestic  trade,  it  can- 
not, with  or  without  discrimination,  tax  or  otherwise  regu- 
late that  interstate  commerce  which  has  not  been  termi- 
nated by  the  merging  of  its  subject  in  the  mass  of  property 
within  the  jurisdiction  of  the  taxing  state.  It  must  be  re- 
membered that,  as  Bradley,  J.,  said,84  "to  carry  on  inter- 
state commerce  is  not  a  franchise  or  a  privilege  granted 
by  the  state ;  it  is  a  right  which  every  citizen  of  the  United 
States  is  entitled  to  exercise  under  the  Constitution  and 
laws  of  the  United  States. '  > 

The  original  package  doctrine. 

51.  In  Brown  v.  Maryland,85  a  statute  of  Maryland  re- 
quiring, inter  alia,  all  importers  of  foreign  articles,  "by 
bale  or  package,"  to  take  out  a  license,  was  held  to  conflict 
with  the  prohibition  of  state  duties  upon  imports,  as  well 
as  with  the  federal  power  of  regulating  commerce, 
Marshall,  C.  J.,  saying86  that  "when  the  importer  has  so 
acted  upon  the  thing  imported,  that  it  has  become  incor- 
porated and  mixed  up  with  the  mass  of  property  in  the 
country,  it  has,  perhaps,  lost  its  distinctive  character  as  an 
import,  and  has  become  subject  to  the  taxing  power  of  the 
state ;  but  while  remaining  the  property  of  the  importer,  in 
his  warehouse,  in  the  original  form  or  package  in  which  it 
was  imported,  a  tax  upon  it  is  too  plainly  a  duty  upon  im- 
ports to  escape  the  prohibition  in  the  Constitution." 

83  Eobbins  v.  Shelby  County  Taxing  District,  120  U.  S.  489,  501. 

84  Crutcher  v.  Kentucky,  141  U.  S.  47,  57. 
85 12  Wheat.  419. 

MP.  441. 


94  THE    REGULATION    OF    COMMERCE. 

Marshall,  C.  J.,  also  said 87  that  "Congress  has  a  right,  not 
only  to  authorize  importation,  but  also  to  authorize  the 
importer  to  sell,"  but  he  qualifies  this 8S  by  his  concession 
that  the  police  power  ' '  remains,  and  ought  to  remain,  with 
the  states. ' '  It  was  subsequently  held  that  the  prohibition 
of  duties  upon  imports  and  exports  had  no  reference  to 
interstate  commerce ; 89  and  the  congressional  right  of  au- 
thorization of  importation  and  the  consequent  right  of 
authorization  of  the  sale  of  imported  articles  have  no 
relevancy  to  state  taxation  or  to  state  police  control  of 
interstate  commerce,  and,  therefore,  a  state  tax  upon  sales 
at  auction  was  held  to  be  applicable  to  products  of  other 
states,  even  though  the  articles  were  sold  in  their  original 
and  unbroken  packages.90  It  was  also  held  that  coal 
brought  from  another  state  by  vessel,  and  unladen,  was 
subject  to  state  taxation  in  its  port  of  destination.91  On 
the  other  hand,  it  was  held  that  a  state  cannot  forbid  a 
common  carrier  to  bring  liquors  into  the  state,  and  that 
such  legislation  does  not  release  the  carrier  from  liability 
in  damages  for  his  refusal  to  carry  the  liquor.92  It  was 
also  held  that  beer  brought  from  another  state  in  barrels 
and  in  cases  was  not  subject  to  seizure  under  a  state  statute 
prohibiting  the  sale  of  intoxicating  liquors,93  the  ground  of 
decision  being  that  beer  is  an  article  of  lawful  commerce, 
and,  as  such,  entitled,  under  the  commerce  clause,  to  be 
brought  into  every  state,  and,  so  long  as  it  remains  in  its  or- 

87  P.  447. 

88  P.  443. 

89  Woodruff  v.  Parham,  8  Wall.  123 ;  A.  S.  &  W.  Co.  v.  Speed,  192  U.  S. 
500. 

90  Woodruff  v.  Parham,  8  Wall.  123. 

"Brown  v.  Houston,  114  U.  S.  622;  P.  &  S.  C.  Co.  v.  Bates,  156  id.  577. 

92  Bowman  v.  C.  &  N.  W.  By.,  125  U.  S.  465.  Waite,  C.  J.,  and  Harlan 
and  Gray,  JJ.,  dissented. 

MLeisy  v.  Hardin,  135  U.  S.  100.  Harlan,  Gray,  and  Brewer,  JJ,,  dis- 
sented. 


THE   OKIGINAL   PACKAGE   DOCTKINE.  95 

iginal  package,  to  be  free  from  state  control.  The  doctrine 
of  this  case  was  obviously  applicable  to  all  importation  and 
transportation  of  intoxicating  liquors,  and  it  necessarily 
was  a  cause  of  irritation  to  those  people  who  conscien- 
tiously believe  it  to  be  the  duty  of  every  government  to 
prohibit  all  traffic  in,  or  use  of,  such  liquors.  There  natur- 
ally followed  an  act  of  Congress,94  providing  "that  all  fer- 
mented .  .  .  liquors  .  .  .  transported  into  any  state  or 
territory  or  remaining  therein  for  use,  consumption,  or 
sale  or  storage  therein,  shall  upon  arrival  in  such  state  or 
territory  be  subject  to  the  operation  and  effect  of  the  laws 
of  such  state  or  territory  enacted  in  the  exercise  of  its  po- 
lice powers,  to  the  same  extent  and  in  the  same  manner  as 
though  such  liquids  or  liquors  had  been  produced  in  such 
state  or  territory,  and  shall  not  be  exempt  therefrom  by 
reason  of  being  introduced  therein  in  original  packages  or 
otherwise. "  As  the  court's  ruling  in  Leisy  v.  Hardin 
was  based  upon  an  affirmation  of  the  constitutional  ex- 
emption of  articles  of  interstate  commerce  from  the 
exercise  of  the  state's  police  power,  there  was  some 
ground  for  supposing  that  an  act  of  Congress  could  not 
confer  upon  the  states  any  power  in  the  premises,  for, 
as  Taney,  C.  J.,  had  said,95  "it  will  hardly  be  contended 
that  an  act  of  Congress  can  alter  the  Constitution,  and 
confer  upon  a  state  a  power  which  the  Constitution  de- 
clares it  shall  not  possess.  And  if  the  grant  of  power  to 
the  United  States  to  make  regulations  of  commerce  is  a 
prohibition  to  the  states  to  make  any  regulation  upon  the 
subject,  Congress  could  no  more  restore  to  the  states  the 
power  of  which  they  were  thus  deprived,  than  it  could 
authorize  them  to  coin  money  or  make  paper  money  a 
tender  in  the  payment  of  debts,  or  to  do  any  other  act 

M  Act  of  8th  August,  1890,  26  Stat.  313,  c.  728. 
96  License  Cases,  5  How.  580. 


96  THE   REGULATION    OF    COMMERCE. 

forbidden  to  them  by  the  Constitution. ' ?  Nevertheless, 
the  court  held 96  that  the  act  was  constitutional  because  it 
was  in  effect  a  national  regulation  of  interstate  commerce 
in  liquors,  and  because  it  imparted  no  power  to  the  states 
not  then  possessed  and  simply  removed  an  impediment 
created  by  the  absence  of  a  specific  utterance  on  the  part 
of  Congress.97  It  has  since  been  held  that  under  this  act 
a  state  cannot  establish  a  system  discriminating  "between 
interstate  and  domestic  commerce  in  commodities  whose 
manufacture  and  use  are  not  prohibited  by  its  laws. ' ?  98  It 
has  also  been  held  that  a  state  may  prohibit  the  sale  of 
oleomargarine  in  imitation  of  butter,  and  that  the  act  of 
Congress 99  defining  butter  and  imposing  a  tax  upon  oleo- 
margarine does  not  authorize  transportation  and  sale  in 
violation  of  such  a  statute,100  the  ground  of  decision  being 
that  the  doctrine  of  Leisy  v.  Hardin  does  not  justify  the 
broad  contention  that  the  states  are  powerless  to  prevent 
the  sale  of  subjects  of  commerce,  if  their  sale  may  cheat 
the  people  into  purchasing  something  which  is  wholly  dif- 
ferent from  that  which  its  condition  and  appearance 
import.  On  the  other  hand,  it  has  been  held 1  that  oleo- 
margarine, being  an  article  of  food  and  commerce,  a  state 
statute  cannot  prohibit  its  transportation  from  another 
state  and  its  sale  in  an  original  ten-pound  package.  It 
has  also  been  held  2  that  a  state  may  prohibit  the  sale  of 
cigarettes  brought  in  from  another  state,  when  the  size  of 

96  In  re  Eahrer,  140  U.  S.  545. 

97  Harlan,  Gray,  and  Brewer,  JJ.,  concurred  in  the  judgment,  but  not  in 
all  the  reasoning  of  the  court. 

98  Scott  v.  Donald,  165  U.  S.  58,  100. 

w  Act  of  2d  August,  1886,  24  Stat.  209,  c.  840. 

100Plumley  v.  Massachusetts,  155  U.  S.  461,  Fuller,  C.  J.,  and  Field  and 
Brewer,  JJ.,  dissenting.     See  also  Grossman  v.  Lurman,  192  U.  S.  189. 

1  Schollenberger  v.  Pennsylvania,  171  U.  S.  1.     Harlan  and  Gray,  JJ.,  dis- 
sented. 

2  Austin  v.  Tennessee,  179  U.  S.  343.     White,  J.,  concurred,  and  Fuller, 
C.  J.,  and  Brewer,  Shiras,  and  Peckham,  JJ.,  dissented. 


TRANSPORTATION  —  POLICE   REGULATION.  97 

the  original  package  is  such  as  to  indicate  an  intention  to 
sell  at  retail  that  which  the  state  in  its  exercise  of  the 
police  power  has  forbidden  to  be  sold,  Brown,  J.,  saying,3 
4 '  The  whole  theory  of  the  exemption  of  the  original  pack- 
age from  the  operation  of  state  laws  is  based  upon  the 
idea  that  the  property  is  imported  in  the  ordinary  form 
in  which  from  time  to  time  immemorial  foreign  goods 
have  been  brought  into  the  country. ' ' 

Transportation—  (a)  State  regulation  in  the  exercise  of 
the  police  power. 

52.  The  construction  of  railways  and  the  consequent 
development  of  systems  of  through  transportation  have 
required  the  court  to  consider  in  many  cases  the  respective 
powers  of  the  United  States  and  of  the  states  in  regard  to 
transportation.  Before  railways  came  into  use  the  then 
ordinary  appliances  of  internal  transportation,  canals 
and  turnpike  roads,  were  regarded  as  "component  parts" 
of  "that  immense  mass  of  legislation  which  embraces 
everything  within  the  territory  of  a  state  not  surrendered 
to  the  general  government. " 4  It  was  subsequently  held 
that  a  state  through  which  the  Cumberland  road  passed 
could  not  tax  coaches  carrying  the  mail  or  persons  travel- 
ing on  the  coaches  in  the  service  of  the  United  States,  but 
the  exemption  from  taxation  was,  in  the  several  judgments 
of  the  court,  based  exclusively  upon  the  terms  of  the  con- 
tracts between  the  United  States  and  the  several  states 
through  which  that  road  ran,  as  made  by  the  statutes  of 
those  states  authorizing  the  construction  of  the  road.5 

Under  the  later  cases  a  state  may,  in  the  exercise  of  its 
police  power,  regulate  transportation  so  far  as  may  be 

8  p.  359. 

4  Gibbons  «.  Ogden,  9  Wheat.  203,  235. 

"Searight  v.   Stokes,   3   How.    151;    N.,   M.   &   Co.   v.   Ohio,   ibid.   720; 
Achison  v.  Huddleson,  12  id.  293. 
7 


98  THE   REGULATION    OF    COMMERCE. 

necessary  for  the  protection,  safety,  and  comfort  of  its 
citizens,  but  it  may  not  by  such  regulations  unnecessarily 
impede  or  obstruct  interstate  transportation.  A  state 
could,  before  the  passage  of  the  Interstate  Commerce  Act, 
require  under  a  penalty  all  railroads  to  fix  and  post  their 
rates  of  fare  and  freight  and  not  to  charge  in  excess 
therefor.6  A  state  may  regulate  the  charges  of  a  private 
warehouse  for  the  storage  of  grain,  although  that  grain  be 
stored  in  the  course  of  interstate  transportation.7  A 
state  may  fix  and  enforce  maximum  rates  of  fare  and 
freight  for  intrastate  transportation  on  all  railways 
within  the  state,  even  though  the  people  in  other  states 
may  be  indirectly  affected  thereby.8  A  state  may  forbid 
discrimination  in  transportation  within  its  territory,  and 
constitute  a  commission  to  revise  railway  tariffs  and  to 
enforce  the  statute,  for  it  is  not  to  be  assumed  that  the 
commission  will  interfere  with  interstate  transportation.9 
A  state  may  forbid  railways  to  employ  in  a  position  re- 
quiring the  use,  or  discrimination  of  the  form  or  colour, 
of  signals  "any  person  not  having  received  from  a  state 
board  a  certificate  of  freedom  from  colour  blindness. " 10 
A  state  may  require  railways  to  provide  separate  accom- 
modations for  white  and  coloured  persons  traveling 
between  points  within  the  state.11  A  state  may  prohibit 
the  running  of  freight  trains  on  Sunday  on  any  railway 
in  the  state.12  A  state  may  require  railways  to  place 

6  E.  Co.  v.  Fuller,  17  Wall.  560. 

7Munn  v.  Illinois,  94  U.  S.  113;  Budd  v.  New  York,  143  id.  517;  Brass 
v.  North  Dakota,  153  id.  391. 

8  C.,  B.  &  Q.  K.  v.  Iowa,  94  U.  S.  155;  Peik  v.  C.  &  N.  W.  By.,  ibid.  164. 
Field  and  Strong,  JJ.,  dissented  in  each  case. 

9  Stone  v.  F.  L.  &  T.  Co.,  116  U.  S.  307;   Stone  v.  I.  C.  E.,  ibid.  347; 
Stone  v.  N.  O.  &  N.  E.  E.,  ibid.  352. 

10  N.,  C.  &  S.  L.  Ey.  v.  Alabama,  128  U.  S.  96. 

11  L.,  N.  O.  &  T.  Ey.  v.  Mississippi,  133  U.  S.  587.     Harlan  and  Bradley, 
JJ.,  dissented.     C.  &  O.  Ey.  v.  Kentucky,  179  U.  S.  388. 

12  Hennington  v.  Georgia,  163  U.  S.  299. 


TRANSPORTATION— POLICE   REGULATION.  99 

guard  posts  in  the  prolongation  of  the  line  of  bridge 
trusses  so  that  in  case  of  derailment  the  posts,  and  not  the 
bridge  trusses,  shall  receive  the  blow  of  the  derailed  loco- 
motive or  car,13  and  a  state  may  prohibit  the  heating  of 
passenger  cars,  other  than  dining  cars,  "by  any  stove  or 
furnace  kept  inside  the  car  or  suspended  therefrom."14 
A  state  may  require  all  regular  passenger  trains  running 
wholly  within  the  state  to  stop  at  all  county  seats  long 
enough  to  take  on  and  discharge  passengers.15  A  state 
may  forbid  a  common  carrier  of  passengers  to  limit  its 
liability  by  contract.16  A  state  may  forbid  a  common 
carrier  to  limit  its  liability  save  by  an  agreement  in  writ- 
ing signed  by  the  owner  of  the  goods,  for  such  a  require- 
ment is  the  establishment  of  a  rule  of  evidence,  and  not  a 
regulation  of  contracts  as  to  interstate  transportation.17 
A  state  may  require  all  railways  within  the  state  to  stop 
certain  of  their  trains  running  each  way  daily,  at  stations 
in  towns  containing  a  specified  number  of  inhabitants  and 
to  stop  for  a  time  sufficient  to  receive  and  let  off  passen- 
gers.18 A  state  may  require  railways  receiving  freight 
for  transportation  to  a  point  on  a  connecting  line  to  be 
liable  for  damages  caused  on  the  connecting  line,  for  the 
railway  may  lawfully  limit  its  contract  of  transportation 
to  its  own  line.19  A  state  may  authorize  a  municipality  to 
prohibit  by  ordinance  the  running  of  any  trains  within  its 
limits  at  a  speed  greater  than  that  fixed  in  the  ordinance.20 
A  state  may  require  intersecting  railways  to  provide 

a  N.  Y.,  N.  H.  &  H.  E.  v.  New  York,  165  U.  S.  628. 
14  N.  Y.,  N.  H.  &  H.  E.  v.  New  York,  supra. 

15Gladson  v.  Minnesota,  166  U.  S.  427;  cf.  L.  S.  &  M.  S.  Ey.  v.  Ohio, 
173  id.  285;  I.  C.  E.  v.  Illinois,  163  id.  142. 

16  C.,  M.  &  S.  P.  Ey.  v.  Solan,  169  U.  S.  133. 

17  K.  &  A.  E.  v.  P.  T.  Co.,  169  U.  S.  311. 

18  L.  S.  &  M.  S.  Ey.  v.  Ohio,  173  U.  S.  285. 

19  M.,  K.  &  T.  Ey.  v.  McCann,  174  U.  S.  580. 
20Erb  v.  Moraseh,  177  U.  S.  584. 


100  THE   KEGULATION    OF    COMMEKCE. 

facilities  for  transferring  cars  used  in  the  regular  busi- 
ness of  their  respective  lines.21  A  state  may  provide  that 
all  railways  doing  business  within  the  state  shall  be  liable 
in  damages  to  their  employees  for  any  negligence  of  the 
railway's  servants.22  A  state  may  require  railways  to 
construct  and  maintain  cattle  guards  and  fences  under  a 
penalty  of  double  damages.23  A  state  may  authorize  the 
recovery  from  railways  of  double  damages  for  cattle 
killed  or  injured  at  a  point  where  the  railway  might,  but 
did  not,  fence.24  A  state  may  authorize  its  railroad  com- 
mission to  require  a  railway  to  erect  and  maintain  sta- 
tions at  designated  villages.25  A  state  may  prohibit  or 
restrain  the  sale  of  wines  or  liquors  imported  from  foreign 
countries  or  brought  within  its  territory  from  another 
state,  though  introduced  in  an  original  package  or  other- 
wise, or  manufactured  in  the  state.26  A  state  may  pro- 
hibit the  sale  of  an  adulterated  food  product,  even  though 
it  is  brought  from  a  foreign  country.27  A  state  may  so 
regulate  the  operation  of  draw-bridges  over  navigable 
waters  that  the  traffic  on  the  water  and  the  traffic  on  the 
land  shall  be  so  conducted  as  to  interfere  as  little  as 
possible  with  each  other.28  A  state  may  grant  and  con- 
trol the  exercise  of  ferry  licenses.29  A  state  may  estab- 
lish port  regulations  for  its  harbours.30  A  state  may  au- 

21 W.,  M.  &  P.  E.  v.  Jacobson,  179  U.  S.  287. 

22  M.  P.  Ey.  v.  Mackey,  127  U.  S.  205. 

23  M.  P.  Ey.  v.  Humes,  115  U.  S.  512. 

24  M.  &  S.  L.  E.  v.  Beckwith,  129  U.  S.  26. 
26  M.  &  S.  L.  E.  v.  Minnesota,  193  U.  S.  53. 

26  The  License  Cases,  5  How.  504;  Bartemeyer  v.  Iowa,  18  WaU.  129  ; 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25;  Foster  v.  Kansas,  112  id.  201; 
Mugler  v.  Kansas,  123  id.  623;  Act  of  8th  August,  1890,  26  Stat.  313, 
c.  728,  legislatively  limiting  the  operation  of  Leisy  v.  Hardin,  135  U.  S.  100. 

"Grossman  v.  Lurman,  192  U.  S.  189. 

^Escanaba  Co.  v.  Chicago,  107  U.  S.  678. 

29  Fanning  v.  Gregoire,  16  How.  524,  534;  Conway  v.  Taylor,  1  Black,  603. 

80  The  James  Gray  v.  The  John  Fraser,  21  How.  184. 


TRANSPORTATION  —  POLICE   REGULATION.  101 

thorize  a  municipality  to  forbid  the  use  of  steam  power 
by  railways  within  the  municipal  limits.31 

On  the  other  hand,  a  state,  by  its  police  regulations,  could 
not,  before  the  passage  of  the  Interstate  Commerce  Act, 
enforce  with  respect  to  interstate  transportation,  a  prohi- 
bition of  a  charge  of  the  same,  or  a  greater,  toll  for  a 
shorter  than  for  a  longer  distance  in  the  same  direction.32 
After  the  passage  of  the  Interstate  Commerce  Act  such  a 
regulation  was  a  fortiori  beyond  the  power  of  the  state.33 
A  state  may  not  require  all  trains  carrying  interstate 
passengers  to  stop  at  a  station  where  other  adequate 
accommodations  were  furnished  by  the  railway,  especially 
where  the  stoppage  of  through  trains  at  that  station 
requires  them  to  run  over  a  branch  line  taking  them 
several  miles  out  of  their  direct  course.34  A  state  may 
not  require  a  railway  to  stop  at  all  county  seats,  a  sufficient 
time  to  take  on  or  let  off  passengers,  such  express  trains  as 
are  run  only  for  the  transportation  through  the  state  of 
passengers  between  two  points  in  other  states,  especially 
when  by  other  trains  adequate  accommodations  are  pro- 
vided for  all  local  and  through  transportation  to  and  from 
each  county  seat.35  A  state  may  not  require,  under  a 
penalty,  a  report  to  the  state  authorities  of  the  name  and 
occupation  of  every  passenger.36  A  state  cannot  forbid 
a  common  carrier  to  bring  into  the  state  intoxicating 

31  E.  Co.  v.  Eichmond,  96  U.  S.  521. 

82  W.,  S.  L.  &  P.  Ey.  v.  Illinois,  118  U.  S.  557.  Waite,  C.  J.,  and  Bradley 
and  Gray,  JJ.,  dissented. 

33  L.  &  N.  E.  v.  Eubank,  184  U.  S.  27.  Gray  and  Brewer,  JJ.,  dissented. 
G.,  C.  &  S.  F.  Ey.  v.  Hefley,  158  id.  98. 

34 1.  C.  E.  v.  Illinois,  163  U.  S.  142. 

35  C.,  C.,  C.  &  St.  L.  Ey.  v.  Illinois,  177  U.  S.  514;  Gladson  v.  Minnesota, 
166  id.  427. 

S8Sinnot  v.  Davenport,  22  How.  227;  Foster  v.  Davenport,  ibid,  244. 
New  York  v.  Miln,  11  Pet.  102,  from  the  judgment  in  which  Marshall,  C.  J., 
and  Story,  J.,  dissented,  though  not  formally,  is  practically,  overruled. 


101  a  THE    KEGULATION    OF    COMMEKCE. 

liquors.37  A  state  may  not  regulate  rates  of  transporta- 
tion over  a  line  connecting  two  points  within  the  state  but 
passing  in  part  through  another  state.38 

While  a  state  has,  unless  restrained  by  contract,  or 
unless  it  thereby  regulates  foreign  or  interstate  commerce, 
the  power  to  fix  by  legislation  transportation  charges 
within  its  jurisdiction,  and  while  the  presumption  is  always 
in  favour  of  the  validity  of  a  governmental  regulation 
under  legislative  authority,383  it  nevertheless  cannot  re- 
quire a  railway  to  carry  without  reward,  nor  can  it  so  fix 
charges  as  to  take  private  property  without  just  com- 
pensation, nor  without  due  process  of  law.38b  A  state  can- 
not under  pretence  of  regulating  rates  require  railways  to 
carry  specified  classes  of  people  at  rates  lower  than  those 
fixed  by  law  for  all  classes.380  As  the  power  of  fixing  rates 
is  administrative,  it  must  be  exercised  by  the  legislature 38d 
and  not  by  the  courts,386  but  it  is  within  the  judicial  power, 
and  it  is  the  judicial  duty,  to  restrain  that  which  in  the 
form  of  regulation  operates  to  deny  to  the  owners  of  prop- 
erty invested  in  the  conduct  of  transportation  the  equal 
protection  of  the  laws.381  The  courts  must,  therefore, 
when  a  proper  case  is  presented,  determine  whether  trans- 
portation charges  as  fixed  by  legislative  regulation  are, 

87  Bowman  <v.  C.  &  N.  W.  Ey.,  125  U.  S.  465. 
38  Hanley  v.  K.  C.  S.  Ey.,  187  U.  S.  617. 

38  a  C.,  M.  &  St.  P.  Ey.  v.  Tompkins,  176  U.  S.  167,  173. 

88  &  Stone  v.  F.  L.  &  T.  Co.,  116  U.  S.  307 ;  Dow  v.  Beidelman,  125  id. 
680,  689;  G.  E.  &  B.  Co.  v.  Smith,  128  id.  174,  179;  C.,  M.  &  St.  P.  Ey.  v. 
Minnesota,  134  id.  418,  458;  C.  &  G.  T.  Ey.  v.  Wellman,  143  id.  339,  344; 
Budd  v.  New  York,  ibid.   517,   547.     Until   Congress  otherwise   directs,   a 
state  may  regulate  the  intrastate  rates  of  railways  chartered  by  the  United 
States:  Smyth  v.  Ames,  169  U.  S.  466;  Eeagan  v.  M.  T.  Co.,  154  id.  413. 

88  c  L.  S.  &  M.  S.  Ey.  v.  Smith,  173  U.  S.  684. 

38  d  C.  &  G.  T.  Ey.  v.  Wellman,  143  U.  S.  339,  344. 

38  e  Eeagan  v.  F.  L.  &  T.  Co.,  154  U.  S.  362,  399. 

88  /  Eeagan  v.  F.  L.  &  T.  Co.,  supra;  St.  L.  &  S.  F.  Ey.  v.  Gill,  156  U.  S. 
649,  657;  C.  &  L.  T.  E.  Co.  v.  Sandford,  164  id.  578,  584;  C.,  B.  &  Q.  E.  v. 
Chicago,  166  id.  222,  241. 


TRANSPORTATION— POLICE    BEGTJLATION.  101  b 

or  are  not,  so  unreasonably  low  as  to  deprive  the  carrier 
of  his  property  without  just  compensation.  Yet  a  railway 
may  not  fix  its  rates  solely  with  a  view  to  its  own  interest 
and  ignoring  the  rights  of  the  public,  nor  may  it  fix  its 
rates  upon  any  basis  other  than  that  of  the  fair  value  of 
the  property  used  and  the  fair  value  of  the  services  ren- 
dered, or,  in  other  words,  a  fair  return  upon  the  capital  in- 
vested.36^ In  this  connection  Harlan,  J.,  said:38h  "The 
basis  of  all  calculations  as  to  the  reasonableness  of  the 
rates  to  be  charged  by  a  corporation  maintaining  a  high- 
way under  legislative  sanction  must  be  the  fair  value  of 
the  property  being  used  by  it  for  the  convenience  of  the 
public.  And  in  order  to  ascertain  that  value,  the  original 
cost  of  construction,  the  amount  expended  in  permanent 
improvements,  the  amount  and  market  value  of  its  bonds 
and  stock,  the  present  as  compared  with  the  original  cost 
of  construction,  the  probable  earning  capacity  of  the  prop- 
erty under  particular  rates  prescribed  by  statute,  and  the 
sum  required  to  meet  operating  expenses,  are  all  matters 
for  consideration  and  are  to  be  given  such  weight  as  may 
be  just  and  right  in  each  case.  We  do  not  say  that  there 
may  not  be  other  matters  to  be  regarded  in  estimating  the 
value  of  the  property.  What  the  company  is  entitled  to 
ask  is  a  fair  return  upon  the  value  of  that  which  it  employs 
for  the  public  convenience.  On  the  other  hand,  what  the 
public  is  entitled  to  demand  is  that  no  more  be  exacted 
from  it  for  the  use  of  the  public  highway  than  the  services 
rendered  by  it  are  reasonably  worth."  38i 

Much  misapprehension  with  regard  to  the  proper 
limits  of  the  exercise  of  governmental  power  over 

38  g  M.  &  St.  L.  Ey.  v.  Minnesota,  186  U.  S.  287. 

38  h  Smyth  v.  Ames,  169  U.  S.  466,  546;  171  id.  361. 

88  i  See  also  S.  D.  L.  &  T.  Co.  v.  National  City,  174  U.  S.  739,  757; 
Stanislaus  County  v.  S.  J.  &  K.  E.  C.  &  I.  Co.,  192  id.  201 ;  S.  D.  L.  &  T.  Co. 
v.  Jasper,  189  id.  439. 


101  C  THE    REGULATION    OF    COMMERCE. 

the  railways  has  resulted  from  reasoning  by  analogy, 
for  the  logical  value  of  that  method  of  reasoning  is 
dependent  upon  an  exact  similarity  in  all  points  between 
the  subjects  of  comparison.  It  is  a  truism  that  railways 
are  public  highways,  and  yet  it  is  clear  that  they  are  not 
highways  in  the  sense  that  navigable  rivers  and  roads, 
whether  common  or  improved,  are  highways.  Railways 
differ  from  those  other  highways  in  three  important  re- 
spects, which  deprive  the  analogy  of  much  of  its  value. 
In  the  first  place,  the  railways  have  in  the  United  States 
been  constructed,  in  almost  every  instance,  not  by  public 
officers  expending  the  public  funds,  but  by  private  persons 
under  corporate  organizations  expending  private  funds 
realized  from  the  sale  of  corporate  bonds  or  shares,  the 
investors  taking  all  the  risks,  and  relying  upon  the  finan- 
cial results  of  operation  under  the  corporate  franchises 
for  income  and  reimbursement  of  outlay.  In  the  second 
place,  the  railway  is  not  only  an  artificial  highway,  but  also 
it  can  only  be  used  as  a  highway  in  connection  with  arti- 
ficial means  of  transportation  which  the  railway  must 
itself  supply  and  operate.  The  earlier  railways  in 
England  and  in  this  country  were  chartered  upon  the 
theory  that  the  company  would  provide  the  road  and  the 
customers  find  their  several  modes  of  transportation,  but 
it  was  soon  discovered  that  the  magnitude,  complexity,  and 
dangers  of  the  business  were  too  great  to  admit  of  its 
conduct  in  that  manner.  In  the  third  place,  every  rail- 
way is  a  common  carrier,  and,  as  such  is  bound  to  carry 
at  reasonable  rates  and  without  unjust  discrimination  all 
freight  and  all  passengers  that  may  be  offered  to  the  extent 
of  its  facilities. 

If  transportation  rates  could  be  treated,  without  refer- 
ence to  the  public  interest,  as  subjects  of  private  bargain 
between  the  railway  and  its  customers,  it  would  be  lawful 
for  the  railway  on  the  one  hand  to  demand  whatever  sum, 


TRANSPORTATION— POLICE    REGULATION.  101  d 

however  exorbitant,  that  the  necessities  of  its  customer 
would  compel  him  to  pay,  and  for  the  customer,  on  the 
other  hand,  to  have  his  goods  carried  as  nearly  free  as 
possible.  But  that  duty  to  the  public  which  requires  the 
railway  to  carry  all  freight  at  a  reasonable  rate  defines  as 
reasonable  that  rate  which  not  only  adequately  remuner- 
ates the  railway  for  the  transportation  of  the  particular 
freight,  but  also  enables  it  to  carry  that  freight  without 
prejudice  to  its  performance  of  its  duty  of  transporting 
other  classes  of  freight.  In  other  words,  neither  the  cus- 
tomer, nor  the  railway,  can  be  permitted  to  ignore  the  fact 
that  the  railway  is  not  a  private,  but  a  common  carrier,  and 
that,  therefore,  its  charges  must  be  fixed  with  reference  to 
its  performance  of  duties  to  others  as  well  as  to  the  par- 
ticular customer. 

Local  freight  costs  the  railways  more  than  through 
freight.  By  reason  of  the  fluctuation  in  its  demand  upon 
the  terminal  facilities,  rolling  stock,  and  labour  it  involves 
a  large  outlay  in  capital  and  in  cost  of  administration,  with 
uncertainty  as  to  the  amount  of  return  in  any  given  period. 
It  necessitates  the  frequent  transportation  of  light  loads, 
and  a  consequent  loss  of  income  from  unused  facilities  and 
unemployed  labour.  Its  necessary  sidings,  switches,  and 
frogs  increase  the  perils  of  operation.  On  the  other  hand, 
through  freight  can  be  transported  in  full  loaded  cars,  and 
with  the  minimum  of  labour,  by  reason  of  certainty  as  to 
the  duration  of  the  trip  and  the  demands  upon  that  labour. 

All  freight  is  not  of  equal  bulk  or  value,  nor  is  it  neces- 
sarily received,  carried,  or  delivered  in  precisely  the  same 
manner.  It  may  be  received  and  delivered  at  the  station 
and  loaded  and  unloaded  by  the  railway  employees ;  it  may 
be  received  and  delivered  at  the  railway  sidings,  but 
loaded  and  unloaded  by  the  consignor  or  consignee;  it 
may  be  received  from  and  delivered  to  sidings  on  private 
premises,  and  loaded  or  unloaded  there  by  the  consignor 


101  e  THE    REGULATION    OF    COMMERCE. 

or  consignee ;  or  it  may  be  received  in  one  of  these  ways 
and  delivered  in  another.  So  also  the  stipulated  speed  of 
transportation  may  vary.  A  railway  also  has  to  deal 
both  with  retail  and  wholesale  customers,  that  is,  with 
those  who  at  their  option  make  occasional  use  of  its  trans- 
portation facilities,  and  with  others  who  make  a  pre- 
arranged regular  and  constant  use  of  these  facilities. 

It  is  to  the  interest  of  both  the  public  and  the  railways 
that  rates  should  be  sufficiently  large  to  yield  an  adequate 
return  for  the  capital  invested,  to  maintain  the  plant  in  a 
condition  of  efficiency,  and  to  permit  the  railway  to  avail 
itself  of  such  improvements  as  may  be,  from  time  to  time, 
made  in  machinery  and  appliances.  The  railway  plant 
includes  not  merely  the  roadbed  and  main  tracks,  but 
also  the  terminal  facilities,  the  way  stations,  the  sidings 
necessary  therefor,  the  rolling  stock,  and  the  skilled  labour 
upon  which  devolves  the  maintenance  and  operation  of 
the  road.  The  traffic  must  be  steady  in  order  that  there 
may  be  no  loss  from  unused  machinery  and  unemployed 
labour.  Eeturn  freight  must  be  provided  in  order  to  avoid 
as  far  as  possible  the  transportation  of  empty  cars.  The 
cost  of  moving  freight  varies  upon  different  lines,  and 
upon  different  parts  of  the  same  line,  in  accordance  with 
the  grades,  the  more  or  less  expensive  character  of  the 
tunnels,  bridges,  viaducts,  and  other  engineering  appli- 
ances that  have  been  provided  to  overcome  natural  ob- 
stacles, and  the  cost  to  the  railway  of  its  machinery,  fuel, 
and  labour.  The  railway  manager  has,  therefore,  in  fixing 
a  rate  to  determine  the  cost  of  moving  a  given  quantity  of 
freight  of  the  particular  kind  over  the  designated  distance 
in  the  desired  manner,  and  to  that  end  he  must  consider 
several  elements,  to  each  of  which  due  weight  must  be 
given:  first,  the  extent  to  which  the  company's  way  or 
terminal  facilities  and  labour  will  be  used  in  handling  the 
freight ;  second,  the  necessary  demand  of  that  freight  upon 


TRANSPORTATION  — POLICE    REGULATION.  101  / 

motive-power  and  rolling  stock,  and  the  possibility  of  ob- 
taining a  full  return  freight ;  third,  the  length  of  the  haul 
and  the  favourable  or  unfavourable  character  of  the 
grades ;  fourth,  the  degree  of  expedition  required,  and  the 
consequent  accommodation  to,  or  disturbance  of,  the  gen- 
eral traffic  arrangements  of  the  road ;  fifth,  the  constant,  or 
fluctuating,  character  of  the  demands  of  the  particular 
freight  upon  the  road's  facilities;  and,  sixth,  the  relative 
bulk  and  value  of  the  freight  and  the  degree  of  the 
carrier's  responsibility  for  its  safe  transportation.  Bail- 
ways  have  not  been  chartered,  nor  has  capital  been 
invested  in  their  construction,  upon  the  theory  that  they 
are  to  do  business  for  less  than  cost  and  a  reasonable 
profit  upon  the  investment.  The  railway  manager  must, 
therefore,  in  order  that  dividends  may  be  earned,  add, 
after  determining  the  cost  of  moving  and  handling  the 
particular  freight,  such  a  sum  for  profit  as  will,  in  addi- 
tion to  the  company's  profits  from  other  sources,  furnish 
an  adequate  return  for  the  capital  invested. 

When,  therefore,  government  officers  undertake  to  fix 
transportation  rates,  it  is  only  fair  and  just  that  they 
should  take  into  consideration  the  elements  of  the  problem 
as  it  would  present  itself  to  the  mind  of  an  experienced 
and  intelligent  railway  manager.  And  when  the  courts 
are  called  upon  to  determine  the  validity  of  governmental 
regulations  as  to  rates  they  may  properly  give  weight  to 
the  same  considerations. 

It  is  true  that  the  sum  of  the  par  of  the  share  and 
debt  capital  of  every  railway  line  does  not  always  accur- 
ately express  the  exact  amount  of  capital  invested  in  the 
line.  In  some  cases,  more,  or  less,  of  the  share  capital  is 
only  water,  and  even  more  or  less  of  the  debt  capital  may 
have  been  issued  at  a  discount.  In  other  cases,  and  this  is 
certainly  true  of  the  great  trunk  lines,  the  sum  of  the  par 
of  the  share  and  debt  capital  is,  by  reason  of  past  ex- 


102  THE    REGULATION    OF    COMMERCE. 

penditure  of  income  in  betterments,  and,  in  some  cases 
and  to  large  amounts,  by  reason  of  issues  of  addi- 
tional share  capital  at  a  premium,  very  much  less  than 
the  amount  actually  invested  in  the  line. 

Transportation—  (b)  Regulation  by  taxation. 

The  United  States  may,  in  the  exercise  of  the  power  to 
regulate  commerce,  impose  a  duty  payable  by  shipping 
companies  in  respect  of  passengers,  not  citizens  of  the 
United  States,  coming  from  a  foreign  port  into  a  port  of 
the  United  States,39  and  such  a  duty,  being  an  incident  of 
the  regulation  of  commerce  and  not  a  tax,  is  not  subject 
to  the  constitution  requirement  of  uniformity,  and  "it  op- 
erates with  the  same  force  and  effect  in  every  place  where 
the  subject  of  it  is  found. "  40  A  state  may  require  a  rail- 
way, incorporated  by  it  to  construct  a  line  between  a  point 
in  the  state  and  a  point  without  the  state,  to  transport 
passengers  for  a  charge  not  exceeding  a  fixed  sum,  and  to 
pay  to  the  state  a  percentage  of  the  whole  amount  which 
may  be  received  for  the  transportation  of  passengers ;  the 
court  holding  that  the  payment  to  the  state  is  not  a  tax 
upon  interstate  transportation  but  a  charge  for  the  use  of 
improved  facilities  of  transportation  which  the  state,  by 
its  agent,  the  railway,  has  constructed  and  for  whose  use 
it  has  a  right  to  charge.41  A  state  may  impose  a  tax  upon 
the  actual  cash  value  of  every  share  of  the  capital  stock 
of  a  railway  incorporated  by  it  even  though  the  railway 
does  interstate  business.42  A  state  may  impose  on  every 

39  Act  of  3d  August,  1882,  23  Stat.  214;   The  Head  Money  Cases,  112 
U.  S.  580. 

40  Per  Miller,  J.,  112  U.  S.  594. 

41  B.    &   O.   K.   v.   Maryland,    21   Wall.    456.     Miller,   J.,    page   475,    dis- 
sented, holding  that  the  state  could  not  raise  a  revenue  from  all  persons 
going  from,  or  through,  the  state  by  railway  to  a  point  beyond  the  state. 
And  compare  Allen  v.  P.  P.  C.  Co.,  191  U.  S.  171. 

42  Minot  v.  P.,  W.  &  B.  B.,  The  Delaware  Kailroad  Tax  Case,  18  Wall.  206. 


TRANSPORTATION —  REGULATION    BY    TAXATION. 


103 


railway  operating  within  the  state  a  franchise  tax,  to  be 
determined  in  amount  by  multiplying  the  average  gross 
receipts  per  mile  by  the  number  of  miles  operated  within 
the  state,  the  ground  of  decision  being  that  the  state  which 
grants  the  franchise  may  annex  conditions  to  its  exercise, 
and  may  measure  the  value  of  the  franchise  by  the  gross 
receipts  earned  by  operation  under  that  franchise.43  A 
state  may  tax  the  tolls  received  by  a  railway  chartered  by 
another  state,  but  owning  a  line  within  the  taxing  state, 
for  the  use  of  such  line  by  another  railway.44  A  state  may 
tax  the  capital  stock  of  a  car  company  in  the  proportion 
that  the  number  of  miles  run  by  its  cars  within  the  state 
bears  to  the  whole  number  of  miles  run  by  its  cars  in  that 
and  other  states.45  A  state  may  require  a  company  doing 
both  a  domestic  and  an  interstate  business  to  take  out  a 
license.46  A  state  may  tax  the  capital  stock  of  a  con- 
solidated corporation  chartered  by  it,  and  one  of  whose 
constituent  corporations  is  a  foreign  corporation.47  A 
state  may  tax  transportation  between  two  points  within 

43  Maine  v.  G.  T.  Ey.,  142  U.  S.  217.     Bradley,  Harlan,  Lamar,  and  Brown, 
JJ.,    dissented.     A    state    cannot,    upon   this   principle,    tax   a    corporation 
created  by  an  act  of  Congress:  California  v.  G.  P.  E.,  127  U.  S.  1.     And 
a  state  cannot  tax  the  right  of  transporting  interstate  passengers  within 
its  borders:    Allen  v.  P.  P.  C.  Co.,  191  TI.  S.  171. 

44  N.  Y.,  L.  E.  &  W.  E.  v.  Pennsylvania,  158  U.  S.  431. 

45  P.  P.  C.  Co.  v.  Pennsylvania,  141  U.  S.  18.     (Field,  Bradley,  and  Harlan, 
JJ.,    dissented,    on   the   ground   that    the    tax   was   in   reality   imposed   on 
cars  which  only  came  within  the  state  in  pursuit  of  commerce,  and  was, 
therefore,  void  under  the  principle  of  Hays  v.  P.  M.  S.  Co.,  17  How.  596.) 
P.  P.  C.  Co.  v.  Hayward,  141  U.  S.  36 ;  C.,  C.,  C.  &  S.  L.  Ey.  v.  Backus,  154 
id.  439;   A.  E.   T.   Co.  v.   Hall,   174  id.  70;   U.  E.   T.   Co.   v.  Lynch,   177 
id.   149.     And  a  state,  in  taxing  an   express  or  telegraph  company,  may 
regard  the  mileage  or  property  within  the  state  not  strictly  locally  but  as 
part  of  a  system  operated  in  several  states:  A.  E.  Co.  v.  Ohio,  165  U.  S. 
194,   166  id.   185;    A.   E.   Co.  v.   Kentucky,  ibid.   171;    W.  U.   T.   Co.  v. 
Missouri,  190  id.  412;  cf.  Fargo  v.  Hart,  193  id.  490. 

4COsborne  v.  Florida,  164  U.  S.  650;  P.  Co.  v.  Adams,  189  id.  420.     See 
also  Allen  v.  P.  P.  C.  Co.,  191  id.  171. 
47  Ashley  v.  Eyan,  153  U.  S.  436. 


104  THE   REGULATION    OF    COMMEECE. 

the  state  but  passing  in  part  through  another  state,  the 
tax  being  "determined  in  respect  of  receipts  for  the  pro- 
portion of  transportation  within  the  state/'48  A  state 
may  impose  a  privilege  tax  on  the  business  of  a  railway 
company  in  transporting  passengers  in  cabs  to  and  from 
a  station  within  the  state.49  A  state  may  impose  a  tax 
upon  sales  at  auction  of  goods  which  are  the  product  of 
other  states,  and  which  are  sold  in  their  original  and  un- 
broken packages,  the  tax  having  a  uniform  application  to 
sales  at  auction  within  a  specified  territory,  and  not  dis- 
criminating as  against  sales  at  auction  of  the  products  of 
other  states.50  A  state  may  tax  coal  consigned  by  a  resi- 
dent of  another  state  for  sale  and  afloat  in  a  port  of  the 
taxing  state  in  the  vessel  in  which  it  had  been  trans- 
ported.51 And  a  state  may  tax  timber  cut  in  its  forests, 
though  owned  by  a  resident  of  another  state  and  deposited 
at  a  place  from  whence  it  is  to  be  shipped  to  another 
state.52 

A  state  may  not  impose  a  capitation  tax  on  persons 
leaving  the  state  by  railroad,  stage  coach,  or  otherwise.53 
Curiously  enough,  this  case  is  referred  to  in  the  later  judg- 
ments as  if  it  had  been  decided  on  the  ground  taken  in 
the  dissenting  judgment,54  that  the  tax  was  void  because 
it  imposed  "a  burden  upon  commerce  among  the  several 
states, ' '  whereas  the  judgment  of  the  court  was  put55  on 
the  ground  that  a  state  tax  on  the  interstate  transportation 
of  passengers  is  void  because  it  is  an  interference  with  the 
freedom  of  transit  of  citizens  to  the  seat  of  government 

48  L.  V.  E.  v.  Pennsylvania,  145  U.  S.  192. 
48  New  York  v.  Knight,  192  U.  S.  21. 

50  Woodruff  v.  Parham,  8  Wall.  123. 

51  Brown  v.  Houston,  114  U.  S.  622 ;  P.  &  S.  C.  Co.  v.  Bates,  156  id.  577. 

52  Coe  v.  Enrol,  116  U.  S.  517. 

68  Crandall  v.  Nevada,  6  Wall.  35. 

64  By  Chase,  C.  J.,  and  Clifford,  J. 

65  By  Miller,  J. 


TBANSPORTATION— KEGULATION  BY  TAXATION.     105 

and  is  consequently  an  infringement  upon  the  federal 
supremacy.  A  state  may  not  impose,  as  affecting  inter- 
state commerce,  a  tax  on  freight.56  A  state  may  not  im- 
pose a  privilege  tax  at  a  fixed  rate  per  car  on  all  cars  run 
by  railways  not  owning  the  cars,  so  far  as  affects  cars  used 
in  the  transportation  of  passengers  into,  through,  or  out  of, 
the  state.57  A  state  may  not,  so  far  as  affects  interstate 
commerce,  tax  the  gross  receipts  of  corporations  engaged 
in  the  business  of  running  cars  over  any  of  the  railways  of 
the  state.58  A  state  may  not  tax  the  gross  receipts  of 
the  transportation  of  passengers  or  goods  in  interstate 
commerce.59  A  state  may  not  require  a  railway  company, 
being  a  link  in  a  through  line  of  interstate  transportation, 
to  pay  a  license  fee  for  maintaining  an  office  for  the  sale  of 
tickets.60  A  state  may  not  require  an  agent  of  an  inter- 
state transportation  line  to  pay  a  license  fee  for  soliciting 
passenger  traffic  between  points  in  other  states ; 61  nor 
require  agents  of  foreign  express  companies  to  take  out 
licenses,  and  satisfy  the  state  authorities  that  the  company 
has  an  actual  capital  to  the  amount  fixed  in  the  taxing 
statute.62  A  state  may  not,  directly  or  indirectly,  tax  the 
importation  of  passengers.63  A  state  may  not  impose  a 

"The  State  Freight  Tax,  15  Wall.  232;  Swayne  and  Davis,  JJ.,  dissented; 
E.  By.  v.  Pennsylvania,  15  Wall.  282. 

"Pickard  v.  P.  S.  C.  Co.,  117  U.  S.  34;  Tennessee  v.  P.  S.  C.  Co.,  ibid. 
51.  See  also  Allen  v.  P.  P.  Co.,  191  id.  171. 

58  Fargo  v.  Michigan,  121  U.  S.  230. 

59  P.  &  S.  S.  Co.  v.  Pennsylvania,  122  U.  S.  326,  overruling  the  State 
Tax  on  Eailway  Gross  Receipts,  15  Wall.  284,  from  the  judgment  in  which 
Miller,  Field,  and  Hunt,  JJ.,  had  dissented. 

60  N.  &  W.  E.  v.  Pennsylvania,  136  U.  S.  114. 

^McCall  v.  California,  136  U.  S.  104;  Fuller,  C.  J.,  and  Brewer  and 
Gray,  JJ.,  dissented. 

62Crutcher  v.  Kentucky,  141  U.  S.  47. 

68  The  Passenger  Cases,  7  How.  283;  Taney,  C.  J.,  and  Daniel,  Nelson, 
and  Woodbury,  JJ.,  dissented;  Henderson  v.  The  Mayor,  92  U.  S.  259; 
Chy  Lung  v.  Freeman,  ibid.  275;  People  v.  Compagnie  Generale  Trans- 
atlantique,  107  U.  S.  59. 


106  THE   REGULATION    OF    COMMERCE. 

stamp  duty  upon  bills  of  lading  for  the  transportation  of 
goods  from  a  port  in  one  state  to  a  port  in  another.64 

While  a  state  may  tax  the  property  of  those  persons, 
natural  or  corporate,  who  may  be  by  residence  subject  to 
its  jurisdiction,  even  if  that  property  be  invested  in  ships,65 
yet  a  state  may  not  tax  property  invested  in  shipping, 
whose  owners  are  not  personally  subject  to  its  jurisdiction, 
and  which  come  into  its  ports  in  the  pursuit  of  commerce,66 
and  this  exemption  is  not  adversely  affected  by  a  tempor- 
ary enrollment  of  a  ship  in  a  port  of  the  taxing  state.67 
Nor  can  a  state  tax  shipping  as  such,  when  engaged  in 
foreign  or  interstate  commerce,  though  its  owners  be  sub- 
ject to  its  jurisdiction,68  for  taxation  so  imposed  amounts 
to  a  regulation  of  commerce.69 

Transportation — (c)  The  Interstate  Commerce  Act. 

In  the  years  preceding  1870,  the  people,  recognizing  the 
fact  that  the  development  of  the  Middle  and  Western 
states  required,  as  speedily  as  possible,  improved  means  of 
communication,  facilitated  by  legislation,  and  by  prodigal 
grants  of  state  and  county  aid,  the  organization  and  con- 
struction of  railway  lines ;  but,  in  the  years  following  1870, 
some  of  the  railways  having  come  to  regard  themselves  as 
mere  corporations  for  private  gain,  and,  as  such,  entitled 
to  conduct  their  business  without  regard  to  the  public  in- 

MAliny  v.  California,  24  How.  169,  as  explained  by  Miller,  J.,  in  Wood- 
ruff v.  Parham,  8  Wall.  124,  137. 

65  T.  Co.  v.  Wheeling,  99  U.  S.  273;  W.  F.  Co.  v.  East  St.  Louis,  107 
id.  365. 

66  Hays  v.  P.  M.  S.  Co.,  17  How.  596;  St.  Louis  v.  W.  F.  Co.,  11  Wall. 
423;  G.  F.  Co.  v.  Pennsylvania,  114  U.  S.  196. 

67  Morgan  v.  Parham,  16  Wall.  471 ;  Act  of  18th  February,  1793,  11  Stat. 
306. 

68  Moran  v.  New  Orleans,  112  U.  S.  69 ;  S.  S.  Co.  v.  Portwardens,  6  Wall. 
31. 

"Harman  v.  Chicago,  147  U.  S.  396. 


THE   INTEKSTATE    COMMEKCE   ACT. 


107 


terest,  popular  feeling  was  excited,  a  reaction  came,  and 
some  of  the  states,  and  afterwards  the  United  States, 
undertook  by  legislation  to  correct  the  abuses,  and  enforce 
correct  principles,  of  railway  administration.  Hence  the  In- 
terstate Commerce  Act  and  its  amendments,70  which  ap- 
ply to  all  interstate  common  carriers,  by  railroad 
or  partly  by  railroad  and  partly  by  water,  "under  a  com- 
mon control,  management,  or  arrangement,  for  a  continu- 
ous carriage ;"  require  all  charges  to  be  reasonable  and 
just ;  forbid  unjust  and  unreasonable  charges ;  prohibit  the 
receipt  from  any  person  of  "a  greater  or  less  compensa- 
tion for  any  service  rendered  .  .  .  than  that  received  from 
any  other  person  for  a  like  and  contemporaneous  service  in 
the  transportation  of  a  like  kind  of  traffic  under  substan- 
tially similar  circumstances  and  conditions ; ' '  forbid  undue 
or  unreasonable  preferences  or  discriminations,  either  per- 
sonal or  local ;  require  reasonable,  proper,  and  equal  facili- 
ties for  the  interchange  of  traffic  with  other  lines,  and 
forbid  discrimination  in  rates  as  between  connecting  lines ; 
forbid  the  receipt  of  as  great,  or  "greater  compensation 
in  the  aggregate  .  .  .  under  substantially  similar  circum- 
stances and  conditions  for  a  shorter  than  for  a  longer  dis- 
tance over  the  same  line  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance, ' '  provided,  how- 
ever, that  the  commission  may  prescribe  the  extent  to 
which  a  designated  carrier  may  be  relieved  from  the 
operation  of  this  prohibition;  forbid  the  pooling  of 
freights,  or  division  of  earnings,  by  competing  lines; 
require  publication  of  foreign  and  interstate  rates ;  forbid 

70  Act  4th  February,  1887,  24  Stat.  379,  as  amended  by  Acts  of  7th 
August,  1888,  25  Stat.  382;  2nd  March,  1889,  25  Stat.  855;  10th  February, 
1891,  26  Stat.  743;  llth  February,  1893,  27  Stat.  443;  2nd  March,  1893, 
27  Stat.  531;  1st  April,  1896,  29  Stat.  85;  8th  February,  1895,  28  Stat.  643; 
3d  March,  1901,  31  Stat.  1446;  llth  February,  1903,  32  Stat.  823;  19th 
February,  1903,  32  Stat.  847;  2nd  March,  1903,  32  Stat.  943. 


108  THE   REGULATION    OF    COMMERCE. 

any  advance  in  rates  except  after  ten  days '  public  notice ; 
permit  reductions  in  rates  after  three  days '  public  notice ; 
forbid  all  departures  from  the  published  rates;  require 
schedules  of  rates  to  be  filed  with  the  commission ;  forbid 
combinations  to  prevent  continuous  carriage;  declare 
carriers  to  be  liable  for  non-compliance  with  the  acts  to 
any  person  injured  thereby  in  the  full  amount  of  damages, 
together  with  a  reasonable  counsel  or  attorney's  fee; 
authorize  complaint  to  the  commission,  or  action  at  law  in 
the  federal  courts  by  any  person  injured  by  a  carrier's 
non-compliance  with  the  acts ;  provide  that  no  person  shall 
be  excused  from  attending  and  testifying  or  from  produc- 
ing books,  etc.,  on  the  ground  that  the  testimony,  or 
evidence,  documentary  or  otherwise,  required  of  him  may 
tend  to  criminate  him,  but  that  no  person  shall  be  prose- 
cuted, or  subjected  to  any  penalty  or  forfeiture,  on  account 
of  any  transaction,  concerning  which  he  may  testify,  or 
produce  evidence,  in  any  such  preceding;  subject  to 
punishment  by  fine  the  corporation  and  all  directors,  offi- 
cers, or  employees  violating  the  act;  create  a  commission 
of  five  members,  holding  office  for  a  limited  term,  not 
more  than  three  of  the  members  to  be  appointed  from 
the  same  political  party;  authorize  the  commission  to  in- 
quire into  the  management  and  operation  of  carriers,  with 
power  to  require  the  attendance  and  testimony  of  wit- 
nesses and  the  production  of  papers,  and  to  that  end  to 
invoke  the  aid  of  the  courts  of  the  United  States ;  vest  juris- 
diction in  the  commission  to  examine  and  to  take  testimony 
upon  complaint  made  by  any  person,  natural  or  corporate ; 
authorize  the  commission  to  investigate  of  its  own  motion ; 
forbid  the  dismissal  of  a  complaint  "because  of  the  ab- 
sence of  direct  damages  to  the  complainant;"  make  the 
findings  of  the  commission  prima  facie  evidence  in  all 
judicial  proceedings ;  require  the  commission,  and  author- 


THE   INTERSTATE    COMMERCE   ACT.  109 

ize  any  party  interested,  in  case  of  the  carrier's  refusal 
or  neglect  to  obey  any  lawful  order  of  the  commission,  to 
apply  in  a  summary  way  by  petition  to  the  courts  of  the 
United  States  for  relief,  and  vest  jurisdiction  thereof  in 
such  courts,  and  authorize  the  court  to  enter  a  decree  and 
issue  process  with  right  of  appeal  to  the  appropriate 
federal  appellate  tribunal;  authorize  the  commission  to 
make  rules ;  fix  the  principal  office  of  the  commission  in  the 
city  of  Washington,  but  authorize  it  to  hold  special  ses- 
sions, and  prosecute  inquiries,  in  any  part  of  the  United 
States ;  authorize  the  commission  to  require  reports  from 
carriers  as  to  share  and  debt  capital,  rates,  administration, 
and  accidents  to  passengers  or  employees;  require  the 
commission  to  make  annual  reports  to  the  Secretary  of  the 
Interior  for  transmission  to  Congress;  and  provide  that 
carriers  may  carry  free,  or  at  reduced  rates,  goods  for  the 
United  States,  and  municipal  governments,  or  for  charit- 
able purposes,  or  for  exhibition  at  fairs,  etc.,  and  may 
issue  mileage,  excursion,  or  commutation  passenger 
tickets,  or  give  reduced  rates  to  ministers  of  religion, 
municipal  governments  for  the  transportation  of  indigent 
persons,  inmates  of  soldiers'  and  sailors'  homes,  officers 
and  employees  of  their  own  line,  and  may  exchange  passes 
and  tickets  with  other  lines.  Under  the  act  and  its  amend- 
ments, it  has  been  decided  that  the  Interstate  Commerce 
Commission  is  a  body  corporate,  with  power  to  sue,  and 
to  be  sued,  in  the  federal  courts.71  It  is  not  a  court,  because 
its  members  do  not  hold  their  offices  by  the  tenure  of  good 
behavior,  and  because  the  duties  imposed  upon  it  are  not 
judicial  in  their  nature.  It  is,  however,  a  "subordinate 
administrative,  or  executive,  tribunal,"  72  and,  as  such,  it 
cannot  exercise  the  legislative  power  of  fixing  rates  in 

71  T.  &  P.  By.  v.  I.  C.  C.,  162  U.  S.  197. 
72 1.  C.  C.  v.  Brimson,  154  U.  S.  447. 


110  THE    REGULATION    OP    COMMERCE. 

futuro;  73  nor  can  it  indirectly  fix  rates  by  determining 
what  would  be  a  reasonable  rate,  and  then  obtaining  from 
the  courts  an  order  restraining  a  carrier  from  making  in 
futuro  a  charge  in  excess  of  such  rates.74  In  actions  to 
enforce  the  orders  of  the  commission  an  appeal  from  a 
circuit  court  now  goes,  not  to  the  Supreme  Court,  but  to 
the  circuit  court  of  appeals.75  The  provision  in  section 
12  of  the  act  that  the  commission  may  "invoke  the  aid  of 
any  court  of  the  United  States  in  requiring  the  attendance 
and  testimony  of  witnesses  and  the  production  of  books, 
etc.,"  is  not  open  to  constitutional  objection  upon  the 
theory  that  it  imposes  upon  a  judicial  tribunal  duties  which 
are  not  in  their  nature  judicial.76  The  commission  cannot 
compel  obedience  to  its  orders  by  entering  a  judgment 
subjecting  any  person  to  fine  or  imprisonment,  for  the 
power  to  impose  such  penalties,  in  order  to  compel  per- 
formances of  a  legal  duty  imposed  by  the  act,  can  only  be 
exercised  by  a  competent  judicial  tribunal.77  A  witness  in 
any  inquiry  by  or  on  behalf  of  the  commission  could  not, 
before  the  passage  of  the  Act  of  llth  February,  1893,78  be 
required  to  answer  questions  when  he  stated  that  his  an- 
swers might  tend  to  criminate  him ; 79  but,  as  that  act  pro- 
vided that  "no  person  shall  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  any  transac- 
tion .  .  .  concerning  which  he  may  testify  or  produce 
evidence  .  .  .  before  said  commission  ...  in  any  such 
case  or  proceeding"  he  can  now  be  compelled  to  answer 

73  C.,  N.  O.  &  T.  P.  By.  v.  I.  C.  C.,  162  U.  S.  184;  I.  C.  C.  v.  C.,  N.  O.  & 
T.  P.  By.,  167  id.  479;  Harlan,  J.,  dissented. 

74 1.  C.  C.  v.  A.  M.  By.,  168  U.  S.  144. 

75 1.  C.  C.  v.  A.,  T.  &  S.  F.  E.,  149  U.  S.  264. 

76 1.  C.  C.  v.  Brimson,  154  U.  S.  447. 

"I.  C.  C.  v.  Brimson,  154  U.  S.  447;  Fuller,  C.  J.,  and  Brewer  and 
Jackson,  JJ.,  dissented,  and  Field,  J.,  did  not  sit. 

78  27  Stat.  443,  c.  83. 

19  Counselman  v.  Hitchcock,  142  U.  S.  547. 


THE    INTERSTATE    COMMERCE    ACT.  Ill 

notwithstanding  the  protection  afforded  by  the  V  Amend- 
ment.80 There  is  a  continuous  carriage  of  goods  within 
the  meaning  of  the  act  when  goods  shipped  under  a 
through  bill  of  lading  from  a  point  in  one  state  to  a  point 
in  another  state  are  received  in  transit  and  carried  ex- 
clusively within  a  state  by  a  carrier  under  a  pro  rata  divi- 
sion of  the  rate,  and  such  intrastate  carrier  thereby 
subjects  itself  to  the  jurisdiction  of  the  commission  so  far 
as  regards  such  transportation.81  The  pro  rata  share  of  a 
through  rate  may,  without  unlawful  discrimination  or 
undue  preference,  be  less  than  a  local  rate.82  Party  rate 
tickets,  sold  at  reduced  prices  for  parties  of  ten  or  more  in 
number,  do  not  constitute  undue,  or  unreasonable,  prefer- 
ences in  favour  of  the  purchasers  thereof,  nor  unjust,  or 
unreasonable,  discriminations  as  against  purchasers  of 
single  tickets.83  In  the  absence  of  a  general  regulation  that 
free  cartage  from  a  railway  station  to  the  premises  of  a 
consignee  shall  be  regarded  as  a  part  of  a  terminal  service, 
railway  transportation  must  be  held  to  end  at  the  railway 
station,  and  the  furnishing  of  free  cartage  to  consignees 
in  one  town,  but  not  in  another  town,  does  not  constitute 
unjust  local  discrimination ; 84  but  a  rebate  allowed  to  a 
consignee  to  compensate  for  the  cost  of  cartage  from  the 
railway  station  to  his  premises,  when  a  similar  rebate  is 
not  allowed  to  another  consignee  in  the  same  locality,  is  an 
unjust  personal  discrimination.85  That  an  unlawful  dis- 
criminating rate  was  allowed,  or  a  rebate  paid,  in  violation 
of  the  act,  does  not  prevent  liability  on  the  part  of  the 
carrier  for  the  freight  received  and  covered  by  insurance 

80  Brown  v.  Walker,  161  U.  S.  591;    Shiras,  Gray,  and  White,  JJ.,  dis- 
sented. 

81  C.,  N.  O.  &  T.  P.  Ey.  v.  I.  C.  C.,  162  U.  S.  184. 

82  Parsons  v.  C.  &  N.  W.  Ey.,  167  U.  S.  447. 
88 1.  C.  C.  v.  B.  &  O.  E.,  145  U.  S.  263. 

84 1.  C.  C.  v.  D.,  G.  H.  &  M.  Ey.,  167  U.  S.  633. 
85  Wight  v.  U.  S.,  167  U.  S.  512. 


112  THE   BEGULATION    OF    COMMEBCE. 

in  the  custody  of  the  carrier's  agents.86  The  act  does  not 
in  terms  authorize  competing  carriers  to  enter  into  con- 
tracts to  maintain  even  reasonable  rates.87  The  right  of 
recovery  given  by  the  statute  for  an  excess  of  payment 
over  a  rate  charged  to  another  shipper  under  similar  con- 
ditions is  in  the  nature  of  a  penalty,  and  the  plaintiff  must 
produce  full  proof  thereof,  and  must  show  a  pecuniary 
injury  to  himself  resulting  from  such  discrimination.88 
Substantial  similarity,  or  dissimilarity,  of  circumstances 
and  conditions  is  a  question  of  fact,  to  be  proved  by  evi- 
dence and  finding  of  the  commission  thereon  is  only  prima 
facie,  and  is  subject  to  review  by  the  court.89  Eeduced 
through  rates  from  a  port  of  entry  to  a  point  within  the 
country  on  goods  from  abroad,  which,  except  for  such  re- 
duced rate,  would  not  have  come  through  that  port  of 
entry,  do  not  constitute  an  unjust  discrimination  as 
against  traffic  originating  at  that  port  of  entry.90  The 
commission  may  administratively  determine  the  circum- 
stances and  conditions  affecting  competitive  rates,  con- 
sidering to  that  end  the  legitimate  interests  of  the  carrier 
as  well  as  of  the  shippers,  and  the  legitimate  interests  of 
the  locality  to  which  the  goods  are  to  be  carried  as  well  as 
of  the  locality  from  which  the  goods  are  shipped.91  A 
substantial  competition,  that  is  a  competition  producing 
a  substantial  and  real  effect  upon  traffic  and  rate  making, 
is  one  of  the  circumstances  constituting  substantial  dis- 
similarity under  the  long  and  short  haul  clause  in  sections 
3  and  4  of  the  act,92  and  which  may  justify  a  carrier  in 

86  M.  C.  P.  &  S.  Co.  v.  Insurance  Co.  of  N.  A.,  151  U.  S.  368. 

87  U.  S.  v.  T.  M.  R  A.,  166  U.  S.  290. 

88  Parsons  v.  C.  &  N.  W.  By.,  167  U.  S.  447. 
89 1.  C.  C.  v.  A.  M.  Ey.,  168  U.  S.  144. 

90  T.  &  P.  Ey.  v.  I.  C.  C.,  162  U.  S.  197. 
81  T.  &  P.  Ey.  v.  I.  C.  C.,  162  U.  S.  197. 
92 1.  C.  C.  v.  A.  M.  Ey.,  168  U.  S.  144;  L.  &  N.  E.  v.  Behlmer,  175  id. 


THE   INTERSTATE    COMMERCE   ACT.  113 

charging  a  greater  compensation  for  a  shorter  than  for 
a  longer  haul. 

It  was  held,  before  the  passage  of  the  Interstate  Com- 
merce Act,  that  a  state  could  require  under  a  penalty  all 
railroads  to  fix  and  post  their  rates  of  fare  and  freight 
and  not  to  charge  in  excess  therefor,93  but  it  was  held  also 
that  a  state  could  not  by  a  police  regulation  enforce,  with 
respect  to  interstate  transportation,  a  prohibition  of  a 
charge  of  the  same,  or  a  greater,  toll  for  a  shorter  than 
for  a  longer  distance  in  the  same  direction,94  and,  after 
the  passage  of  the  Interstate  Commerce  Act,  it  was  held 
that  such  a  regulation  was  a  fortiori  beyond  the  power  of 
the  state,95  for  Congress  having  enacted  its  long  and  short 
haul  clause,  it  was,  of  course,  not  lawful  for  a  state  to 
legislate  on  the  same  subject.  When  a  company  owned 
by  a  railway  corporation  buys  coal  at  the  mines  under 
an  arrangement  alleged  to  secure  preferential  rates 
for  the  vendors,  the  Interstate  Commerce  Commission 
may,  in  a  proper  proceeding  in  the  circuit  court,  com- 
pel the  testimony  of  witnesses  and  the  production  of 
contracts.96 

The  cases  in  the  Supreme  Court  and  the  reports  of  the 
Interstate  Commerce  Commission  show  that  the  act  of 
1887  has  invited  much  costly  and  fruitless  litigation. 
Nevertheless,  the  legislation  is  of  value  in  that  it  has 
strengthened  the  hands  of  those  broad-minded  railway 
managers  who  believe  that  the  interests  of  their  share- 


648;  E.  T.,  V.  &  G.  Ey.  v.  I.  C.  C.,  181  id.  1;  I.  C.  C.  v.  L.  &  N.  E.,  190 
id.  273. 

98  E.  Co.  v.  Fuller,  17  Wall.  560. 

91 W.,  S.  L.  &  P.  Ey.  v.  Illinois,  118  U.  S.  557;  Waite,  C.  J.,  and  Bradley 
and  Gray,  JJ.,  dissented. 

96  L.  &  N.  E.  v.  Eubank,  184  U.  S.  27;  Gray  and  Brewer,  JJ.,  dissented; 
G.,  C.  &  S.  F.  Ey.  v.  Hefley,  158  U.  S.  98. 

*  I.  C.  C.  v.  Baird,  194  U.  S.  25. 


114  THE   REGULATION   OF    COMMERCE. 

holders  are  best  served  by  fair  dealing  with  customers 
and  with  competitors. 

The  Anti-trust  law. 

53.  The  so-called  "trusts"  are  combinations  of  corpora- 
tions and  properties  made,  in  some  cases,  by  the  merger 
and  consolidation  of  existing  associations,  and,  in  other 
cases,  by  the  organization  of  corporations  to  acquire  and 
hold  the  properties  to  be  consolidated,  or  the  controlling 
interest  in  the  shares  of  the  corporations  to  be  combined. 

The  "trusts"  are  a  necessary  result  of  the  growth  of 
the  country,  and  of  the  development  of  isolated  and 
sparsely  settled  states  into  a  nation  whose  territory  is 
covered  by  a  network  of  railways,  whose  trade  is  that  of 
an  empire  and  not  that  of  a  village,  and  whose  markets 
have  ceased  to  be  local  and  have  become  world-wide. 
1 '  Trusts"  are  formed  to  obtain  capital  by  the  sale  of  bonds 
and  shares,  to  save  the  waste  of  competition,  to  secure  in 
production,  transportation,  and  distribution  the  maximum 
of  efficiency  at  the  minimum  of  cost,  to  expand  trade  by 
reducing  the  price  to  the  consumer,  and  by  economical 
operation  to  increase  the  net  profit  to  the  producer  and 
the  carrier. 

It  is  not  surprising  that  the  capitalization  of  our  rail- 
ways, the  number  of  our  industrial  organizations,  and  the 
magnitude  of  their  operations  should  arouse  the  public 
interest,  and  should  cause  on  the  part  of  unintelligent  peo- 
ple more  or  less  fear  as  to  possible  consequences.  Every 
great  industrial  development  has  excited  such  fears.  The 
steam  engine,  the  railways,  and  all  forms  of  labour-saving 
appliances,  from  the  spinning  jenny  to  the  type-setting 
machine,  have  seemed,  in  their  turn,  to  threaten  large  ad- 
ditions to  the  ranks  of  the  unemployed,  and  heavy  losses 
to  different  classes  of  people;  and  yet  in  each  case  the 
result  has  been  the  opening  of  new  avenues  to  employ- 


THE   ANTI-TRUST   LAW.  115 

ment,  and  a  substantial  advance  in  civilization.  So  to- 
day, no  one  who  is  accurately  informed  as  to  present 
industrial  conditions  can  doubt  that,  because  of  American 
financial  skill  in  securing  combination  of  resources  and 
concert  of  action,  and  because  of  increased  railway  effi- 
ciency, the  products  of  industry  have  been  brought  to  a 
higher  standard  than  ever  before,  the  labour  which  pro- 
duces them  is  better  paid,  the  market  is  wider  and  is  better 
supplied,  and  the  consumer  buys  upon  relatively  more 
favourable  terms. 

In  any  legislative  regulation  of  corporations,  great  or 
small,  by  the  United  States,  there  are  only  four  classes  of 
people  to  be  considered.  There  are,  first,  the  investors  in 
the  bonds  and  shares  issued  by  the  corporations,  that  is, 
those  who  desire  to  become  partners  therein,  and  to  par- 
ticipate in  their  profits,  and  who,  therefore,  in  so  far  as 
they  may  properly  be  regarded  as  beneficiaries  of  legisla- 
tion, can  only  be  aided  by  the  requirement  of  publicity, 
that  is,  by  compelling  the  corporation,  under  proper  penal- 
ties, to  furnish  such  information  as  to  its  capital,  earnings, 
and  disbursements  as  will  enable  intending  purchasers 
and  owners  to  determine  whether  its  financial  condition 
be  such  as  to  render  the  purchase  or  holding  of  its  securi- 
ties a  prudent  investment.  But  the  federal  law  can  have 
nothing  to  do  with  the  organization  of  corporations  for 
purposes  not  directly  connected  with  the  exercise  by  the 
United  States  of  some  power  of  government,  nor  can  the 
United  States  constitutionally  regulate  the  issue,  sale,  or 
transfer  of  the  bonds  or  shares  of  such  corporations,  or 
protect  investments  therein.  There  are,  secondly,  the 
business  rivals  or  competitors  of  the  trading  "  trusts. " 
On  their  behalf  complaint  is  made  that  those  " trusts,"  in 
order  to  destroy  competition,  discriminate  in  their  prices. 
But  competition  is  industrial  warfare.  You  cannot  have 


116  THE   REGULATION    OF    COMMERCE. 

a  real  competition  that  does  not  compete  to  the  limit. 
When  competition  is  actively  conducted,  the  seller  attains 
his  ends,  not  only  by  underselling  in  order  to  effect  a 
particular  sale,  but  also  by  carrying  his  underselling  to 
the  extreme  limit  of  driving  his  competitors  out  of  busi- 
ness and  securing  for  himself  complete  control  of  the 
market.  This  is  done,  as  Lord  Justice  Bowen  said,97  from 
"the  instinct  of  self -advancement  and  self -protection, 
which  is  the  very  incentive  of  all  trade.  ...  To  say  that 
a  man  is  to  trade  freely,  but  that  he  is  to  stop  short  at  any 
act  which  is  designed  to  attract  business  to  his  own  shop, 
would  be  a  strange  and  impossible  counsel  of  perfection," 
and  to  attempt  to  prohibit  it  "would  probably  be  as  hope- 
less an  endeavour  as  the  experiment  of  King  Canute. ' '  Is 
it  proposed  that  there  shall  be  a  general  legislative  regu- 
lation of  prices,  and,  if  so,  what  would  that  amount  to? 
There  are,  thirdly,  the  consumers  of  the  goods  manufac- 
tured or  sold  by  the  corporations.  So  far  as  they  are  con- 
cerned, it  is  clear  that  no  act  of  legislation  can  effectively 
prescribe  the  price  at  which  the  products  of  the  corpora- 
tions are  to  be  sold,  for  the  simple  reason  that  market 
prices  always  have  been,  and  always  will  be,  regulated  by 
the  operation  of  the  law  of  supply  and  demand.  Success- 
ful commerce  buys  in  the  cheapest,  and  sells  in  the  dear- 
est, market.  The  seller  rightfully  seeks  the  highest  price 
that  he  can  obtain ;  the  buyer,  as  rightfully,  pays  as  little 
as  he  possibly  can.  There  are,  fourthly,  those  who  or 
whose  goods  are  carried  by  common  carriers,  and  their 
rights  have  been  adequately  regulated  and  protected  by 
the  law. 

It  is  said  that  the  "trusts"  have  "a  tendency  to 
monopoly."  The  fact  is  that,  except  in  the  cases  of 
patents  and  copyrights,  and  of  those  who  control  the 

97  Mogul  S.  S.  Co.  v.  McGregor,  23  Q.  B.  Div.  598;  (1892),  C.  A.  43. 


THE   ANTI-TRUST   LAW.  117 

sole  and  exclusive  source  of  supply  of  a  natural  product, 
it  is  not  possible  in  this  day  of  the  world's  history  to 
maintain  and  enforce,  more  than  temporarily,  extortion- 
ate prices,  for  the  reason  that  there  is  always  available  a 
large  amount  of  uninvested  capital  seeking  profitable  em- 
ployment and  keenly  watching  for  opportunities  of 
remunerative  investment.  Therefore,  intelligent  man- 
agers of  a  successful  business  do  not  advance  prices  to  the 
point  at  which  destructive  competition  will  be  invited. 
Prices  of  commodities  are  automatically  regulated  by  the 
law  of  supply  and  demand.  When,  by  reason  of  an  ap- 
parent permanence  of  demand  and  a  present  inadequacy 
of  the  means  of  supply,  prices  rise  to  a  level  that  gives  a 
reasonable  assurance  of  profit  to  producers,  the  surplus 
capital  of  the  world  can  always  be  relied  upon  to  augment 
the  means  of  supply. 

Attempts  to  regulate  trade  by  legislation  are  not  of 
new  invention.  Whenever  and  wherever  there  has  been 
an  absolute  government  there  have  always  been  attempted 
restrictions  upon  trade.  In  mediaeval  times  it  was  the 
theory  and  the  practice  that  it  was  the  "duty  and  the 
right  of  the  state  to  fix  hours  of  labour,  rates  of  wages, 
prices,  times  and  places  of  sale,  and  quantities  to  be 
sold.'*98  The  selfish  commercial  policy  of  England,  in- 
telligently directed  to  the  restraint  of  colonial  trade  and 
manufactures,  was  the  great  cause  of  the  War  of  Inde- 
pendence. When  the  successful  revolution  had  sub- 
stituted the  sovereignty  of  the  people  for  the  su- 
premacy of  the  Crown,  there  was  naturally  a  jealousy 
of  governmental  power  and  a  determination  to  guard 
individual  liberty  against  oppression.  The  framers  of 
the  Constitution  of  the  United  States,  therefore,  founded 
the  government,  not  only  upon  the  supremacy  of  the 

**Mrs.  Green,  "Town  Life  in  the  XV  Century." 


118  THE   KEGULATION    OF    COMMEKCE. 

federal  government  in  the  exercise  of  the  powers  granted 
to  it,  but  also  and  equally  upon  the  independence  of  the 
states  and  the  freedom  of  the  citizen.  They  foresaw  the 
evil  effects  of  an  unrestrained  exercise  of  the  popular  will. 
They  endeavoured  to  establish  and  make  perpetual  the 
reign  of  law.  They  crystallized  into  the  Constitution  the 
great  principles  of  free  government,  and  they  made  it  im- 
possible to  hastily  change  that  organic  law.  They  de- 
clared in  express  terms  the  supremacy  of  the  Constitution 
and  the  laws  made  in  pursuance  thereof ;  and  they  created 
a  Supreme  Court  whose  judgments  should  give  effect  to 
that  declaration.  They  united  the  states  into  a  nation,  with 
full  powers  of  government,  and  they  reserved  to  the  in- 
dividual citizen  as  much  freedom  as  is  consistent  with  the 
enforcement  of  law  and  the  maintenance  of  order.  Under 
the  Constitution,  there  is  no  warrant  for  paternalism  in 
congressional  legislation. 

It  is  to  the  states,  and  not  to  the  United  States,  that  we 
ought  to  look  for  the  legislative  and  administrative  regu- 
lation of  the  industrial  organizations  of  the  present  and 
the  future.  The  power  of  the  state  is  ample.  A  state 
may  create  corporations,  with  or  without  conditions,  and 
it  may  authorize  a  corporation  to  do  any  business  which 
an  individual  may  lawfully  do.  A  state  may  forbid  a 
foreign  corporation  to  do  business  within  its  territory ;  it 
may  permit  that  business  on  conditions ;  and  it  may,  with 
or  without  reason,  revoke  a  permission  theretofore 
granted.  It  may,  therefore,  enforce  with  regard  to 
foreign  corporations  all,  and  more  than  all,  the  restric- 
tions which  it  enforces  with  regard  to  corporations  of  its 
own  creation.  On  the  other  hand,  the  United  States,  save 
as  the  domestic  government  of  the  District  of  Columbia 
and  the  territories,  cannot  even  grant  a  charter  of  incor- 
poration, except  as  a  means  incidental  to  the  exercise  by 


THE   ANTI-TRUST   LAW.  119 

the  United  States  of  a  power  of  government,  and  it  can 
control  the  operations  of  a  corporation  chartered  by  a 
state  only  under  the  power  of  regulating  foreign  and 
interstate  commerce.  It  does  not  avail  to  say  that  the 
legislation  of  a  state  can  have  no  extra-territorial  force, 
and  that  in  order  to  have  a  rule  of  uniform  application 
throughout  the  country  there  must  be  congressional  legis- 
lation, for  the  conclusive  reply  is  that  every  state,  under 
the  Constitution,  is  entitled  as  of  right  to  determine  for 
itself  by  what  agencies  and  under  what  conditions  com- 
modities shall  be  manufactured  or  sold  within  its  terri- 
tory, subject  only  to  the  paramount  right  of  the  United 
States  to  levy  duties  and  taxes,  and  to  regulate  commer- 
cial intercourse.  As  Fuller,  C.  J.,  forcibly  said  in  his 
dissenting  judgment  in  the  Lottery  Case,"  "The  scope 
of  the  commerce  clause  of  the  Constitution  cannot 
be  enlarged  because  of  present  views  of  public 
interest. ' ' 

In  the  past  the  country  has  had  to  overcome,  under  con- 
ditions of  inadequate  transportation  facilities,  the  dis- 
integrating tendencies  of  the  expansion  of  territory  and 
the  growth  of  population,  but  as  the  results  of  the  triumph 
of  the  nation  in  the  suppression  of  the  Rebellion,  and  the 
development  of  means  of  transportation  and  communica- 
tion, our  perils  are  now  those  of  governmental  consolida- 
tion and  not  those  of  dissolution.  Any  legislation  which 
conflicts  with  the  American  doctrine  that  all  men  are  equal 
before  the  law,  and  that  equality  of  rights  implies  equality 
of  obligations,  and  that  subjects  rights  of  property  and 
freedom  of  contract  to  administrative  control  is  danger- 
ous in  a  republic  governed  by  universal  suffrage.  The 
leaders  of  public  opinion  will  do  well  to  remember  that,  as 
Mr.  Lecky  has  said,  it  is  an  inexorable  condition  that  all 

89 188  U.  S.  373. 


120  THE   KEGULATION    OF    COMMERCE. 

"legislation  which  seriously  diminishes  profits,  increases 
risks  or  even  unduly  multiplies  humiliating  restrictions, 
will  drive  capital  away  and  ultimately  contract  the  field 
of  employment. ' '  10° 

The  first  of  the  congressional  anti-trust  acts  *  was 
drawn  by  Senator  Hoar,2  and  was  passed  because  of  some 
unintelligent  clamour  as  to  "the  grave  evil  of  the  accumu- 
lation in  this  country  of  vast  fortunes  in  single  hands,  or  of 
vast  properties  in  the  hands  of  great  corporations,"  an 
alleged  evil  with  which  the  United  States  cannot,  under 
the  Constitution,  possibly  concern  itself. 

The  Act  of  1890  is  entitled  "An  Act  to  Protect  Trade 
and  Commerce  against  Unlawful  Restraints  and  Monop- 
olies ; ' '  declares  illegal ' '  every  contract,  combination  in  the 
form  of  trust,  or  otherwise,  or  conspiracy  in  restraint  of 
trade  or  commerce  among  the  several  states,  or  territories, 
or  with  foreign  nations ; ' '  and  every  monopoly,  or  attempt 
to  monopolize  any  part  of  such  trade  or  commerce;  sub- 
jects to  forfeiture,  seizure,  and  condemnation  ' '  any  prop- 
erty owned  under  any  contract,  or  by  any  combination,  or 
person,  pursuant  to  any  conspiracy, "  as  aforesaid;  im- 
poses penalties  upon  persons  disobeying  the  act;  vests 
jurisdiction  in  the  courts  of  the  United  States;  gives  a 
right  of  action  for  injury  to  business  or  property  by 
reason  of  anything  declared  unlawful  by  the  act,  with 
three-fold  damages,  costs  of  suit,  and  attorney's  fee;  and 
requires  the  several  district  attorneys,  under  the  direction 
of  the  attorney-general,  to  institute  proceedings  in  equity 
to  prevent  and  restrain  such  violations. 

The  Act  of  llth  February,  1903,3  provides  that  in  suits 
brought  by  the  United  States  under  the  act  precedence 

100  Democracy  and  Liberty,  Vol.  II,  page  463. 

1  2nd  July,  1890,  26  Stat.  209. 

2  Autobiography  of  Hon.  Geo.  F.  Hoar,  Vol.  II,  page  363. 
8  32  Stat.  823. 


THE   ANTI-TRUST   LAW.  121 

shall  be  given,  on  the  filing  of  a  certificate  by  the  attorney- 
general,  and  the  cause  be  heard  before  not  less  than  three 
judges  of  the  circuit,  and  that  an  appeal  from  the  final 
decree  of  the  circuit  court  shall  lie  only  to  the  Supreme 
Court  and  must  be  taken  within  sixty  days.  The  Act  of 
14th  February,  1903,4  creates  the  Bureau  of  Corporations 
in  the  Department  of  Commerce  and  Labor,  provides  for 
the  appointment  of  a  commissioner  thereof,  a  deputy  com- 
missioner, and  clerks;  authorizes  the  commissioner  to 
make  "under  the  direction  and  control  of  the  Secretary  of 
Commerce  and  Labor,  diligent  investigation  into  the  or- 
ganization, conduct,  and  management  of  the  business  of 
any  corporation,  joint  stock  company,  or  corporate  com- 
bination engaged  in  the  commerce  among  the  several 
states  and  with  foreign  nations,  excepting  common 
carriers  subject  to"  the  Interstate  Commerce  Act,  and 
"to  gather  such  information  and  data  as  will  enable  the 
President  of  the  United  States  to  make  recommendations 
to  Congress  for  legislation  for  the  regulation  of  such 
commerce,  and  to  report  such  data  to  the  President  from 
time  to  time  as  he  shall  require;  and  the  information  so 
obtained,  or  as  much  thereof  as  the  President  shall  direct, 
shall  be  made  public."  The  act  also  confers  upon  the 
commissioner  in  respect  to  the  parties  subject  thereto  all 
the  powers  conferred  on  the  Interstate  Commerce  Com- 
mission; and  makes  it  "the  province  and  duty"  of  the 
bureau  ' i  to  gather,  compile,  publish,  and  supply  useful  in- 
formation concerning  corporations  doing  business  within 
the  limits  of  the  United  States,  as  shall  engage  in  inter- 
state commerce,  or  in  commerce  between  the  United  States 
and  any  foreign  country,  including  corporations  engaged 
in  insurance,  and  to  attend  to  such  other  duties  as  may  be 
hereafter  provided  by  law." 

4  32  Stat.  825. 


122  THE   BEGULATION    OF    COMMERCE. 

The  Act  of  25th  February,  1903,5  appropriates  the  sum 
of  $500,000  to  be  expended  under  the  direction  of  the 
attorney-general  "in  the  employment  of  special  counsel 
and  agents  of  the  Department  of  Justice  to  conduct  pro- 
ceedings, suits,  and  prosecutions"  under  the  anti-trust 
acts.  The  Act  of  3d  March,  1903,6  provides  for  the 
appointment  of  an  assistant  to  the  attorney-general,  an 
assistant  attorney-general,  and  two  confidential  clerks  to 
' i  perform  such  duties  as  may  be  required  of  them  by  the 
attorney-general. ' '  The  first  of  the  statutes  only  has  been 
judicially  construed. 

Of  course,  in  every  case  in  which  the  statute  has  been 
enforced,  it  has  necessarily  been  held  to  be  constitutional 
as  a  regulation  of  commerce,  and  not  to  be  open  to  objec- 
tion on  the  ground  of  interference  with  the  freedom  of 
contract.7  In  N.  S.  Co.  v.  U.  S.8  the  question  of  consti- 
tutionality was  fully  and  ably  argued,  and  it  was  held  that 
the  statute,  when  construed  to  forbid  a  combination  to 
organize  a  corporation  to  hold  the  shares  of  competing 
railways,  is  not  open  to  objection  as  an  infringement  upon 
the  reserved  powers  of  the  states,  but,  in  his  dissenting 
judgment  in  that  case,  White,  J.,9  argued  with  great  force, 
that  commerce  as  defined  in  Gibbons  v.  Ogden,  is  commer- 
cial intercourse,  and  is  regulated  by  prescribing  rules  for 
carrying  on  such  intercouse,  and  that  the  ownership  or 
transfer  of  shares  in  a  corporation  created  by  a  state 
cannot  be  said  to  be  in  any  sense  commercial  intercourse, 
and  the  prescribing  of  rules  governing  the  ownership  of 
such  shares  cannot  fall  within  the  power  to  prescribe 
rules  for  regulating  commercial  intercourse.  White,  J., 

6  32  Stat.  854. 

«32  Stat.  1031,  1062. 

TU.  S.  v.  J.  T.  A.,  171  U.  S.  505. 

8 193  U.  S.  197. 

•Fuller,  C.  J.,  and  Peckham  and  Holmes,  JJ.;  concur. 


THE   ANTI-TRUST   LAW. 


123 


also  argued  that  the  power  to  regulate  commerce  includes 
the  power  to  regulate  the  instrumentalities  of  commerce, 
and  that  means  the  regulation,  not  of  their  acquisition  and 
ownership,  but  of  their  employment  and  operation,  and 
that  because  the  ownership  of  property,  if  acquired,  may 
possibly  be  so  used  as  to  burden  commerce,  it  does  not 
follow  that  to  acquire  and  own  is  to  burden. 

Each  of  the  cases  also  required  of  the  court  a  construc- 
tion of  the  statute,  and  a  determination  whether  or  not  the 
facts  in  each  case  brought  it  within  the  statute.  The 
general  principles  which  can  be  deduced  from  the  cases 
are  these : 

1.  The  word  "unlawful"  in  the  title  of  the  statute  has 
reference  only  to  those  contracts  which  the  statute  makes 
unlawful,  and  does  not  operate  to  qualify  the  expression 
of  the  legislative  will  in  the  body  of  the  statute  that 
"every"  contract  in  restraint  of  foreign  and  interstate 
trade  shall  be  unlawful,10  but,  in  the  more  recent  judg- 
ments of  the  court,  the  force  of  those  words  has  been 
materially  qualified  by  the  determination  that  exclusive 
licenses  to  manufacture  and  sell  under  patents  for  inven- 
tions are  not  within  the  statute,  and  by  Mr.  Justice  Peck- 
ham's  admissions  in  the  judgments  of  the  court  in  U.  S. 
v.  T.  M.  F.  A.,11  in  U.  S.  v.  J.  T.  A.,12  and  in  Hopkins  v. 
U.  S.13  that  neither  a  contract  of  partnership,  nor  the 
withdrawal  of  a  competitor  from  business,  nor  the  ap- 
pointment by  competitors  of  a  joint  selling  agent,  nor  the 
purchase  of  an  additional  plant,  nor  "the  formation  of  a 
corporation  for  business  or  manufacturing  purposes, ' '  nor 
an  agreement  collateral  to  a  contract  of  sale,  and  requir- 
ing the  competitor  to  abstain  from  again  entering  into  the 

10  U.  S.  v.  J.  T.  A.,  171  U.  S.  505. 
11 166  U.  S.  290. 
12 171  U.  S.  505. 
13 171  U.  S.  578. 
9 


124  THE   REGULATION    OF    COMMEECE. 

business  within  a  designated  territory  and  during  a 
specified  time,  are  within  the  prohibition  of  the  statute. 
These  conceded  exceptions  from  the  prohibitions  of  a 
statute,  which  expresses  no  exceptions,  would  seem  to 
destroy  the  inclusive  force  claimed  for  the  words  "  every " 
and  "  otherwise. ' ' 

2.  The  term  "contracts  in  restraint  of  trade, "  as  used 
in  the  statute,  includes,  without  regard  to  their  reason- 
ableness or  unreasonableness,  "all  kinds  of  those  con- 
tracts which  in  fact  restrain,  or  may  restrain,  trade/'14 
In  so  deciding,  the  court  did  not  follow  the  modern  and 
well  considered  judgments  in  the  state  courts  and  in  the 
courts  of  England.  The  doctrine  of  contracts  in  restraint 
of  trade  is  not  of  recent  discovery.  Holmes,  J.,15  points 
out  that  contracts  in  restraint  of  trade,  as  defined  by  the 
common  law,  are  contracts  with  a  stranger  to  the  con- 
tractor's business,  and  which  wholly  or  partially  restrain 
the  freedom  of  the  contractor  in  carrying  on  that  busi- 
ness ;  and  that  combinations  or  conspiracies  in  restraint  of 
trade,  as  defined  by  the  common  law,  are  arrangements 
to  keep  strangers  to  the  agreement  out  of  the  business,  and 
which  tend  to  monopolize  some  portion  of  the  trade  of  the 
country.  Such  contracts  were  originally  held  void  at 
common  law,  because  of  the  injury  to  the  public,  by  its 
deprivation  of  the  results  of  the  restricted  individual's 
industry,  and  because  of  the  injury  to  the  individual  by 
his  deprivation  of  the  opportunity  to  labour  for  himself 
and  for  those  who  might  be  dependent  upon  him.  Under 
the  conditions  of  trade  in  the  time  of  the  Year  Books  any 
restraint  of  trade  was  an  unlawful  restraint,  but  under 
modern  conditions  the  test  of  invalidity  is  the  unreason- 
ableness of  the  restraint,  for,  as  Mr.  Justice  Peckham 

14  U.  S.  v.  J.  T.  A.,  171  U.  S.  505. 

15  In  his  dissenting  judgment  in  N.  S.  Co.  v.  U.  S.,  193  U.  S.  197,  400. 


THE   ANTI-TRUST   LAW. 


125 


said  when  he  sat  in  the  Court  of  Appeals  of  New  York,16 
"An  agreement  would  not,"  necessarily,  "be  in  restraint 
of  trade,  although  its  direct  effect  might  be  to  restrain 
to  some  extent  the  trade  which  had  been  done."  The 
overwhelming  current  of  authority  supports  this  view. 
Brewer,  J.,  in  his  concurring  judgment  in  N.  S.  Co.  v.  U. 
S.17  holds  that  while  the  court  had  rightly  decided  the  prior 
cases  under  the  statute,  because  the  contracts  in  all  those 
cases  were,  in  his  opinion,  in  unreasonable  restraint  of 
trade,  yet,  nevertheless,  the  statute  was  not  intended,  and 
should  not  be  construed,  to  prohibit  contracts  in  partial  or 
reasonable  restraint  of  trade. 

3.  If  it  were  not  for  the  judgment  in  N.  S.  Co.  v.  U.  S.18 
it  might  be  regarded  as  authoritatively  determined,  that 
"there  must  be  some  direct  and  immediate  effect  upon 
interstate  commerce  in  order  to  come  within  the  act."1& 
Upon  that  principle  all  the  cases,  other  than  that  of  N.  S. 
Co.  v.  U.  S.,  can  be  reconciled. 

4.  A  direct,20  or  indirect,21  restraint  of  railway  compe- 
tition in  interstate  commerce  is  within  the  statute,  which, 
although  a  general  statute,  repeals  pro  tanto  by  implica- 
tion the  Interstate  Commerce  Acts,22  which  forbid  unjust 
and  unreasonable  charges  by  railway  carriers,  which  re- 
quire public  notice  of  increases  or  reductions  in  rates, 
which  forbid  secret  or  preferential  rates  and  which,  there- 
fore, prohibit  effective  railway  competition.23 

5.  A  state  cannot,  in  respect  of  its  ownership  of  public 

16  Matthew  v.  A.  P.  of  N.  Y.,  136  N.  Y.  333. 

17 193  U.  S.  357. 

18 193  U.  S.  197. 

"Per  Peckham,  J.,  in  Hopkins  v.  U.  S.,  171  U.  S.  578,  592. 

20  U.  S.  v.  T.  M.  F.  A.,  166  U.  S.  290;  U.  S.  v.  J.  T.  A.,  171  id.  505. 

21  N.  S.  Co.  v.  TJ.  S.,  193  U.  S.  393. 

22  Act  4th  February,   1887,   24  Stat.  379,   c.   104,   and  its  supplements, 
supra,  Section  49. 

28  See  the  dissenting  judgment  of  White,  J.,  in  U.  S.  v.  T.  M.  F.  A.,  166 
U.  S.  357  et  seq. 


126  THE   KEGULATION    OF    COMMEKCE. 

lands  and  its  maintenance  of  public  institutions,  and  the 
possibilities  of  depreciation  in  the  value  of  such  lands, 
and  of  increase  in  the  cost  of  maintaining  such  institu- 
tions, by  reason  of  the  possibility  of  a  diminution  of  com- 
petition between  railways,  sue  in  a  federal  court  under 
the  statute  to  enjoin  the  organization  of  a  corporation  to 
hold  the  majorities  of  the  shares  of  such  railways,  for  the 
possibility  of  such  damage  to  the  state  is  too  remote  and 
indirect  and  is  not  the  direct  actual  injury  contemplated 
by  the  statute.24 

6.  A  combination  illegally  formed  in  violation  of  the 
statute  is  not  precluded  from  recovering  the  purchase 
price  of  goods  sold  by  it,  nor  can  its  vendee  set  off  the 
threefold  damages  under  the  statute,  for  the  liability 
therefor  is  only  enf orcible  by  a  direct  action.25  Neverthe- 
less, any  one  sued  upon  a  contract  may  set  up  as  a 
defence  that  that  contract  is  a  violation  of  the  statute,  and, 
if  found  to  be  so,  that  fact  will  constitute  a  good  defence 
to  the  action.26 

Logically,  a  combination  of  labour  is  as  clearly  subject 
to  the  statute  as  a  combination  of  capital.27  The  labour 
unions  reasonably  restrain  trade,  when  they  combine  to 
sell  a  certain  minimum  of  labour  for  not  less  than  a 
certain  price,  but  they  unreasonably  restrain  trade  when, 
in  order  to  effect  their  purpose,  they  use  threats  and  force 
to  prevent  employers  from  securing  labour  not  provided 
by  members  of  the  union.  In  the  absence  of  an  express 
and  unfulfilled  contract  of  service,  it  is  the  legal  right  of 
every  man  to  refuse  to  work,  but  it  is  neither  the  legal  nor 

24  Minnesota  v.  N.  S.  Co.,  194  U.  S.  48. 

25  Connolly  v.  U.  S.  P.  Co.,  184  U.  S.  540. 
28  Bement  v.  N.  H.  Co.,  186  U.  S.  70,  88. 

27 In  re  Debs,  64  Fed.  724,  745,  755,  158  U.  S.  564.  See  "The  Law  of 
Contracts  in  Eestraint  of  Trade,  with  Special  Eeference  to  Trusts,"  by 
George  Stuart  Patterson,  Esq. 


THE   ANTI-TRUST   LAW.  127 

the  moral  right  of  any  man  to  hinder  other  men  from 
working. 

In  each  case  decided  under  the  statute  the  judgment  of 
the  court  was  based  upon  a  construction  of  the  agreement 
of  combination,  and  upon  a  consideration  of  the  possibili- 
ties of  action  thereunder,  without  any  reference  to  that 
which  the  parties  had  done,  or  probably  would  do,  there- 
under. 

The  statute  has  been  construed  to  forbid : 

1.  An  agreement  by  several  corporations   organized 
under  the  laws  of  different  states  and  engaged  in  the 
manufacture,  interstate  transportation,  and  sale  of  a  com- 
modity, to  abstain  from  competition  as  between  them- 
selves within  a  designated  territory,  including  more  than 
one  state.28 

2.  An  agreement  by  members  of  an  unincorporated 
association  of  manufacturers  of,  and  dealers  in,  a  com- 
modity, doing  business  in  several  states  not  to  sell  to  non- 
members  save  at  a  price  in  excess  of  that  at  which  the 
members  sell  to  each  other.29 

3.  Agreements  by  competing  railway  corporations  for 
the  maintenance  of  uniform  rates  upon  interstate  traffic.30 

4.  A  combination  by  several  persons  whereby  a  holding 
corporation  is  organized  under  the  laws  of  a  state  to 
acquire  and  hold  the  majorities  of  the  shares  of  two  rail- 
ways organized  under  the  laws  of  other  states  and  there- 
tofore competing  in  interstate  traffic,31  the  ground  of  de- 
cision being  that  the  common  corporate  ownership  of  the 

28  A.  P.  &  S.  Co.  v.  U.  S.,  175  U.  S.  211. 

29  Montague  v.  Lowry,  193  U.  S.  38. 

80  U.  S.  v.  T.  M.  F.  A.,  166  U.  S.  290;   Gray,  Shiras,  and  White,  JJ./ 
dissented;   U.   S.  v.  J.  T.  A.,   171  id.  505;   Gray,  Shiras  and  White,  JJ., 
dissented,  and  McKenna,  J.,  did  not  sit. 

81  N.  S.  Co.  v.  U.  S.  193  U.  S.  197;  Harlan,  Brown,  McKenna,  and  Day, 
JJ.,  concurred  in  the  judgment  read  by  Harlan,  J.,  and  Brewer,  J.,  con- 
curred in  the  decree,  but  did  not  concur  in  all  the  reasoning  of  Harlan, 
J.;  Puller,  C.  J.,  and  Peckham,  White,  and  Holmes,  JJ.,  dissented. 


128  THE   REGULATION   OF    COMMERCE. 

shares  will  prevent  competition  between  those  railways, 
and  that  the  statute  forbids  the  formation  and  operation 
by  whatever  means  of  a  combination  which  possibly  may 
prevent  such  competition. 

On  the  other  hand  the  statute  has  been  construed  not  to 
forbid : 

1.  Exclusive  licenses  to  manufacture  and  sell  under 
patents   for  inventions,   for   a   patent  is   necessarily   a 
monopoly  and  a  patentee's  protection  is  valueless  if  he 
cannot  fix  prices  and  restrain  competition.32 

2.  The  organization  of  a  corporation  for  the  purchase, 
manufacture,  and  sale  of  a  commodity  throughout  the 
United  States  and  the  acquisition  and  ownership  by  that 
corporation  of  all,  save  one,  of  the  manufactories  of  that 
commodity  in  the  United  States,33  the  ground  of  decision 
being,  not  that  the  case  as  presented  was  simply  that  of 
a  combination  of  factories,  but  that  the  case  was  that  of 
the  vesting  in  one  agency  the  ownership  of,  and  the  control 
over,  theretofore  separated  instrumentalities  of  interstate 
commerce;  that  the  possible  abstention  of  those  instru- 
mentalities from  competition  could  only  be  regarded  as 
incidental  to  the  exercise  of  lawful  rights  of  purchase, 
sale,  and  ownership ;  and  that  the  combination,  therefore, 
lacked  that  direct  and  immediate  effect  upon  interstate 
commerce  which  there  should  be  in  order  to  bring  it  within 
the  statute. 

3.  An   agreement  by  local   sellers   upon   commission 
fixing  their  rates  of  commission,  regulating  competition  as 
between    themselves,    forbidding    purchases    from    non- 
members,  and  forbidding  the  transaction  of  any  business 
with  suspended  members.34 

82  Bement  v.  N.  H.  Co.,  186  U.  S.  70 ;  Harlan,  Gray,  and  White,  JJ.,  did 
not  sit  in  this  case. 

33  U.  S.  v.  E.  C.  Knight  Co.,  156  U.  S.  1.     Harlan,  J.,  dissented. 
84  Hopkins  v.  U.  S.,  171  U.  S.  578;  Anderson  v.  U.  S.,  ibid.  604.     Harlan, 


THE   ANTI-TRUST   LAW.  129 

In  deciding  upon  the  possible  effect  of  the  agreements 
and  acts  of  combination  in  the  three  railway  cases35  and  in 
holding  that  they  restrained  trade  because  they  checked 
competition,  the  court  made  the  mistake  of  not  properly 
appreciating  the  essential  differences  which  distinguish 
competition  between  common  carriers  from  competition 
between  sellers  of  goods.  A  railway  company,  like  all 
other  common  carriers,  is  bound  to  carry  all  freight  that 
may  be  offered,  to  the  extent  of  its  facilities,  at  reasonable 
rates,  and  without  unjust  discrimination,  either  personal 
or  local,  and  it  is  legally  compellable  to  refund  any  over- 
charge in  excess  of  that  which  shall  be  adjudged  to  be 
reasonable ;  and  the  Interstate  Commerce  Act 36  has  made 
this  rule  of  the  common  law  obligatory  upon  all  carriers 
engaged  in  interstate  commerce.  On  the  other  hand, 
buyers  of  goods  may  lawfully  buy  at  the  lowest  price  and 
sellers  of  goods  may  lawfully  sell  at  the  highest  price.  In 
railway  rates  it  is  to  the  interest  of  the  public  that  there 
should  be  uniformity,  in  order  that  all  shippers  may  have 
equal  advantages ;  stability,  in  order  that  all  buyers  and 
sellers  may  correctly  estimate  the  cost  of  transportation 
as  affecting  market  prices ;  and  adequacy  of  compensation 
to  the  carrier,  in  order  that  the  carrier  may  receive  that 
which,  in  the  words  of  the  court,37  "the  services  rendered 
are  reasonably  worth. ' ' 

Before  the  enactment  of  the  statute  of  1890  the  Inter- 
state Commerce  Act,  as  amended  by  the  Act  of  2d  March, 


J.,  dissented  in  both  cases.  In  the  first  case  it  was  held  to  be  an  immaterial 
circumstance  that  the  local  market  was  situated  partly  in  one  state  and 
partly  in  another  state.  In  the  last  case  the  facts  differed  only  in  that  the 
parties  to  the  agreement  were  purchasers  of  property  upon  their  own 
account. 

85  U.  S.  v.  T.  M.  F.  A.,  U.  S.  v.  J.  T.  A.,  and  N.  S.  Co.  v.  U.  S. 

88  4th  February,  1887,  24  Stat.  379,  c.  104. 

37  Smyth  v.  Ames,  169  U.  S.  466. 


130  THE   REGULATION    OF    COMMERCE. 

1889,38  had  forbidden  an  advance  of  railway  rates,  "  ex- 
cept after  ten  days'  public  notice,"  and  had  permitted 
reductions  in  rates  only  ' i  after  three  days '  public  notice. ' ' 
The  Act  of  19th  February,  1903,39  passed  after  the  enact- 
ment of  the  statute  of  1890,  declared  it  to  be  a  misde- 
meanor for  any  carrier  subject  to  the  Interstate  Com- 
merce acts  to  fail  to  obey  those  acts.  Therefore,  as  well 
after  as  before  the  enactment  of  the  Anti-trust  statute,  any 
real  competition  between  railways  was  forbidden  by  legis- 
lation, for  as  a  carrier  can  take  no  business  away  from  a 
competitor  by  a  reduction  in  an  open  rate,  of  which  three 
days'  public  notice  must  be  given,  the  only  way  to  get 
business  by  reducing  the  rates  is  to  give  that  reduction 
secretly  to  the  customer  whose  traffic  is  to  be  secured.  The 
Anti-trust  statute,  as  construed  by  the  court,  says  that 
railway  competition  must  be  unrestrained.  The  Inter- 
state Commerce  acts  say  that  railways  must  not  do  those 
acts  which  are  essential  to  any  effective  competition. 

Uncontrolled  competition  in  transportation  inevitably 
produces  evils  which  the  country  has  often  experienced. 
A  war  of  railway  rates  necessarily  forces  a  diminution  of 
that  liberality  of  railway  expenditure  which  benefits  the 
manufacturer,  the  dealer,  and  the  labouring  man.  Such  a 
war  may  result  also  in  the  bankruptcy  of  weaker  com- 
panies, in  costly  receiverships,  and  reorganizations,  and 
in  absorption  by  stronger  rivals.  When  competition  is 
unrestrained  the  power  of  fixing  rates  is  necessarily 
vested  in  the  company  which  receives  the  goods  from  the 
shipper,  and  that  power  is  inevitably  delegated  to  irre- 
sponsible subordinates,  to  whom  their  road's  need  of 
business  is  all-important.  From  this  it  follows,  that  not 
only  do  the  carriers  fail  to  receive  under  such  conditions 

88  25  Stat.  855. 
39  32  Stat.  847. 


THE   ANTI-TKUST   LAW.  131 

the  advantages  of  adequate  compensation,  but  also  the 
shippers  and  the  public  lose  the  benefits  of  uniformity  and 
stability  of  rates.  Uncontrolled  competition,  therefore, 
injures,  instead  of  benefits,  the  public  interest.  While 
some  judges  have  been  captivated  by  the  supposed  advan- 
tages of  unrestricted  competition  among  carriers,  other 
and  equally  eminent  judges,  and  as  competent  observers, 
have  detected  the  fallacy  in  the  reasoning,  and  have 
pointed  out  the  danger.40  There  are  limits  to  legislation. 
Acts  of  Congress  cannot  control  either  the  laws  of  nature 
or  the  laws  of  trade.  As  the  statute,  judicially  construed, 
forbids  treaties  of  peace  between  warring  lines  and  con- 
solidations of  conflicting  railway  interests,  some  other  way 
will  be  found,  in  the  interest  of  the  public,  to  accomplish 
the  desired  result. 

It  is  difficult  to  reconcile  the  case  of  N.  S.  Co.  v.  U.  S.41 
with  the  case  of  U.  S.  v.  E.  C.  Knight  Co.42  Obviously  a 
statutory  prohibition  of  "every"  restraint  of  trade  cannot 
be  so  construed  as  to  permit  mercantile,  and  forbid  trans- 
portation, restraints  of  trade.  In  each  of  those  cases  the 
controlling  fact  is  that  there  is  vested  in  one  agency  the 
ownership  of,  and  control  over,  instrumentalities  of  inter- 
state commerce,  and,  if  there  be  a  resultant  restraint  of 
trade,  that  result  follows,  not  because  of  any  agreement  to 
abstain  from  competition,  but  only  because  such  absten- 
tion may  possibly  follow  the  exercise  of  legal  rights  of 
purchase,  sale  and  ownership.43 

The  result  in  N.  S.  Co.  v.  U.  S.44  seems  to  be  open  to 
two  further  objections,  which  do  not  appear  to  be  met  by 

40  Hare  v.  L.  &  N.  E.,  2  J.  &  H.  Oh.  80,  103;  M.  &  L.  E.  v.  C.  E.,  66 
N.  H.  100.     See  Eeport  XIV  of  the  Interstate  Commerce  Commission. 
41 193  U.  S.  197. 
42 156  U.  S.  1. 

48  See  the  view  of  Holmes,  J.,  193  U.  S.  405. 
44 193  U.  S.  197. 


132  THE   REGULATION    OF    COMMERCE. 

anything  in  the  judgment  of  the  court,  as  read  by  Harlan, 
J.,  or  in  the  concurring  judgment  of  Brewer,  J. 

1.  The  act,  as  construed  in  the  T.  M.  F.  A.  and  J.  T.  A. 
cases,  forbids  railways  to  agree  not  to  compete,  but  it  does 
not  forbid  non-competition  in  the  absence  of  agreement. 
As  well  after  as  before  the  act,  railways  were,  and  are, 
bound  in  law  to  carry  all  passengers  and  freight  that  may 
be  offered,  to  the  extent  of  their  facilities,  at  reasonable 
rates,  and  without  unjust  discrimination,  either  personal 
or  local;  and  if  the  managers  of  any  railway,  while  ob- 
serving those  requirements,  charge  the  same  rates  as  are 
charged  by  other  railways  under  like  conditions,  but 
without  entering  into  any  agreement  to  that  effect,  they 
violate  no  law.  If  it  be  not  unlawful  for  two  railway 
companies  owned  by  different  shareholders  to  abstain 
from  competition,  it  cannot  be  unlawful  for  two  railway 
companies  owned  by  one  body  of  shareholders  to  similarly 
abstain.  The  fact  of  common  ownership,  therefore,  is  not 
in  itself  a  restraint  of  trade,  nor  does  it  give  rise  to  a 
presumption  that  any  restraint  of  trade  will  be  committed. 
How  can  it  then  be  unlawful  to  organize  a  holding  com- 
pany to  acquire  the  shares  of  two  operating  companies? 

If  it  be  said  that  the  organization  of  the  holding  cor- 
poration is  only  a  means  to  the  end  of  so  unifying  the 
management  of  the  operating  companies  as  to  prevent  any 
possibility  of  competition  as  between  those  companies  and 
that  the  organization  is  therefore  a  fraud  upon  the  statute, 
the  answer  is  that  which  the  court,  speaking  by  Mr.  Justice 
Hunt,  gave45  in  a  case  where  the  question  was  as  to  the 
validity  of  that  which  was  alleged  to  be  a  device  to  avoid 
the  payment  of  a  stamp  duty;  for  in  that  case  the  court 
said  "if  the  device  is  carried  out  by  the  means  of  legal 
forms,  it  is  subject  to  no  legal  censure." 

45  U.  S.  v.  Isham,  17  Wall.  506. 


TELEGEAPHS.  133 

2.  In  the  case,  there  is  neither  contract,  combination, 
nor  conspiracy  between  the  operating  companies,  but  there 
is  an  organization  of  a  holding  company  by  shareholders 
of  the  operating  companies,  and,  by  force  of  that  organiza- 
tion, the  holding  company  becomes  the  majority  share- 
holder of  both  operating  companies.  While  the  rights  of 
the  shareholders  of  a  corporation  entitle  them  to  elect  its 
directors,  and  to  participate  in  net  profits,  when  declared, 
and,  upon  dissolution,  in  net  assets,  those  rights,  neverthe- 
less, do  not  give  any  power  of  direct  corporate  manage- 
ment. A  corporation  is  a  legal  entity  distinguishable 
from  the  body  of  its  shareholders.  It  can  act  only  by  its 
officers  and  agents,  and  its  shareholders  are  neither  its 
officers  nor  agents.  An  agreement  signed  by  every  share- 
holder will  not  bind  the  corporation.  If  an  express  agree- 
ment of  shareholders  of  the  operating  companies  be  not 
effective,  how  can  effect  be  given  to  a  sale  and  transfer 
of  shares  as  legal  evidence  of  presumptive  corporate 
action? 

Telegraphs. 

54.  Congress  has  authorized  46  any  telegraph  company 
organized  under  the  laws  of  any  state  "to  construct,  main- 
tain, and  operate  lines  of  telegraph  through  and  over  any 
portion  of  the  public  domain  of  the  United  States,  over 
and  along  any  of  the  military  or  post  roads47  of  the 
United  States  which  have  been  or  may  hereafter  be  de- 
clared such  by  act  of  Congress,  and  over,  under,  or 
across,  the  navigable  streams  or  waters  of  the  United 
States"  upon  certain  conditions,  including  priority  to 
government  messages,  a  reservation  of  the  privilege  of 


46  Act  of  24th  July,  1866,  14  Stat.  221 ;  Eev.  Stat.  5263,  etc. 

47  Congress,  by  Act  of  8th  June,  1872,  c.  335,  17  Stat.  308;  Eev.  Stat. 
3964,  declared  all  railway  lines  in  the  United  States  to  be  post  roads. 


134  THE   REGULATION    OF    COMMERCE. 

purchase  by  the  government,  and  the  written  acceptance 
by  the  company  of  the  restrictions  and  obligation  of  the 
act.48  Under  this  legislation  it  has  been  decided  that  a 
state  may  require  telegraph  companies  to  receive  on  pay- 
ment of  their  charges  messages  to  be  transmitted  to  points 
in  other  states,  and  to  deliver  messages  with  due  dili- 
gence.49 A  state  may  require  a  telegraph  company  doing 
interstate  business  to  pay  to  the  municipality  a  rental  for 
the  use  of  public  highways  by  its  poles.50  A  state  may 
tax  the  property  owned  by  a  telegraph  company  within  the 
state.51  A  state  may  require  from  a  telegraph  company 
payment  of  a  license  tax  on  business  done  within  the  state 
by  the  company,  though  it  also  carries  on  an  interstate 
business.52 

A  state  may  not,  as  against  the  privileges  conferred  by 
the  United  States,53  vest  an  exclusive  monopoly  in  one 
telegraph  company.54  A  state  may  not  tax  messages  sent 
to  points  without  the  state,  nor  messages  sent  by  officers 
of  the  United  States  on  public  business.55  A  state  may 
not,  as  affecting  delivery  in  other  states  of  messages 
from  points  within  the  state,  require  delivery  by  special 
messengers.56  A  state  may  not  require  a  license  for  the 

48  This  act  does  not  apply  to  telephone  companies:    Kichmond  v.  S.  B.  T. 
Co.,  174  U.  S.  761. 

49  W.  U.  T.  Co.  v.  James,  162  U.  S.  650. 

50  St.  Louis  v.  W.  U.  T.  Co.,  148  U.  S.  92;  P.  T.  C.  Co.  v.  Baltimore,  156 
id.    210.      See   also   W.   U.    T.   Co.   v.   New   Hope,   187   id.   419;    but   cf. 
A.  &  P.  T.  Co.  v.  Philadelphia,  190  id.  160;  P.  T.  C.  Co.  v.  New  Hope, 
192  id.  55;  P.  T.  C.  Co.  v.  Taylor,  ibid.  64. 

61  Massachusetts  v.  W.  U.  T.  Co.,  141  U.  S.  40;  P.  T.  Co.  v.  Adams,  155 
ia.  688;  W.  U.  T.  Co.  v.  Taggart,  163  id.  1;  W.  U.  T.  Co.  v.  Missouri, 
190  id.  412. 

62Ratterman  v.  W.  U.  T.  Co.,  127  U.  S.  411;  P.  T.  C.  Co.  v.  Charleston, 
153  id.  692. 

58  Rev.  Stat.,  sec.  5263,  etc. 

54  P.  T.  Co.  v.  W.  U.  T.  Co.,  96  U.  S.  1. 

85  W.  U.  T.  Co.  v.  Texas,  105  U.  S.  460. 

M  W.  U.  T.  Co.  v.  Pendleton,  122  U.  S.  347. 


COMMERCE   WITH    THE   INDIAN    TRIBES.  135 

privilege  of  doing  interstate  business.57  A  state  may  not 
prohibit,  until  all  state  taxes  have  been  paid  by  it,  the 
doing  of  business  by  a  corporation  which  has  accepted  the 
privileges  granted  by  the  act  of  Congress.58 

Commerce  with  the  Indian  tribes. 

55.  The  Indian  tribes  are  not  foreign  but  domestic 
and  dependent  nations ;  their  relation  to  the  United  States 
resembles  that  of  a  ward  to  his  guardian;  and  they  are 
completely  under  the  sovereignty  and  dominion  of  the 
United  States.  They,  therefore,  cannot  sue  in  the  courts 
of  the  United  States  as  foreign  states.59  The  regulation 
of  the  relation  between  the  several  states  and  the  Indian 
tribes  is  exclusively  vested  in  the  United  States,  and  state 
laws  cannot  operate  within  an  Indian  reservation.60 
Congress,  under  the  power  to  regulate  commerce  with  the 
Indian  tribes,  may  grant  to  a  railroad  corporation  a  right 
of  way  through  their  lands.61  It  may  also  forbid  the 
sale  of  spirituous  liquors  to  all  persons  belonging  to 
Indian  tribes  within  the  territorial  limits  of  a  state,  even 
outside  the  bounds  of  an  Indian  reservation,62  and  it  is 
competent  for  the  United  States,  in  the  exercise  of  the 
treaty-making  power,  to  stipulate  in  a  treaty  with  an 
Indian  tribe,  that  the  introduction  and  sale  of  spirituous 
liquors  shall  be  prohibited  within  certain  territories  ceded 
by  the  tribe  to  the  United  States,  and  such  stipulation 
operates  proprio  vigore,  and  is  binding  though  the  ceded 

57  Leloup  v.  Port  of  Mobile,  127  U.  S.  640  (overruling  Osborne  v.  Mobile, 
16  Wall.  479)  ;  W.  U.  T.  Co.  v.  Alabama,  132  U.  S.  472. 

58  W.  U.  T.  Co.  v.  Massachusetts,  125  U.  S.  530. 

"Cherokee   Nation  v.   Georgia,   5  Pet.   1;    Worcester  v.   Georgia,   6  id. 
515;  Cherokee  Nation  v.  S.  K.  By.,  135  U.  S.  641. 
60  Worcester  v.  Georgia,  6  Pet.  515. 
81  Cherokee  Nation  v.  S.  K.  By.,  135  U.  S.  641. 
•2U.  S.  v.  Holliday;  U.  S.  v.  Haas,  3  Wall.  407. 


136  THE    REGULATION    OP    COMMERCE. 

territory  be  within  the  limits  of  an  organized  county  of 
one  of  the  United  States.63 


68  TJ.  S.  v.  Forty-three  Gallons  of  Whiskey,  93  U.  S.  188.  As  to  the  term 
11  Indian  country/'  see  Ex  parte  Crow  Dog,  109  U.  S.  556;  U.  S.  v.  Le 
Bris,  121  id.  278.  The  subject  of  the  exercise  by  the  states  of  their 
powers  of  taxation,  and  of  police  regulation,  as  affecting  commerce,  is 
more  fully  treated  in  other  chapters  of  this  book. 


CHAPTER  V. 

THE    IMPAIEMENT    OF    THE    OBLIGATION    OF    CONTRACTS. 

56.  The  prohibition  affects  only  state  laws. 

57.  The  term  "law"  defined. 

58.  Judgments  of  state  courts  not  conclusive  either  as  to  the  non-existence 

or  non-impairment  of  contracts. 

59.  The  obligation  of  a  contract  defined. 

60.  Legislation  as  to  remedies. 

61.  The  term  "contracts"  defined. 

62.  State  insolvent  laws. 

63.  Judgments  as  contracts. 

64.  Municipal  taxation. 

65.  History  of  the  prohibition. 

66.  State  grants. 

67.  Express  contracts  of  exemption  from  taxation. 

68.  Express  grants  of  peculiar  privileges. 

69.  Contracts  between  a  state  and  its  political  subdivisions. 

70.  Implied  contracts  in  charters  of  incorporation. 

71.  Implied  corporate  exemption  from  taxation. 

72.  Implied  grants  of  peculiar  privileges. 

73.  Exemption  from  the  operation  of  the  police  power. 

74.  Contracts  as  to  matters  of  public  concern. 

75.  The  withdrawal  by  a  state  of  its  consent  to  be  sued. 

76.  The  force  and  effect  of  the  prohibition  as  construed  by  the  Supreme 

Court. 

The  prohibition  affects  only  state  laws. 

56.  Section  10  of  Article  I  of  the  Constitution  declares 
that ' '  no  state  shall  .  .  .  pass  any  .  .  .  law  impairing  the 
obligation  of  contracts."  This  prohibition  does  not  in 
terms  affect  the  exercise  of  legislative  power  by  the  gov- 
ernment of  the  United  States,  and  not  only  is  there  not  in 
the  Constitution  any  similar  prohibition  with  regard  to 
the  United  States,  but  by  the  grant  of  power  to  Congress, 
"to  establish  .  .  .  uniform  laws  on  the  subject  of  bank- 
ruptcies throughout  the  United  States, ' ' 1  authority  is  ex- 

1  Article  I,  Section  9. 

137 


138  IMPAIRMENT    OF    CONTRACTS. 

pressly  conferred  to  impair  the  obligation  of  contracts 
between  debtors  and  creditors ;  2  and  under  the  doctrine  of 
the  implied  powers,  as  construed  by  the  court,  Congress 
may  impair  the  obligation  of  contracts  by  authorizing  the 
issue  of  notes  which  shall  be  a  legal  tender  in  satisfaction 
of  antecedently  contracted  debts.3  The  constitutional 
prohibition  is  likewise  inoperative  with  regard  to  the  acts 
of  any  political  organization  which  at  the  time  of  the 
adoption  of  the  act  in  question  is  not  one  of  the  United 
States ;  thus,  the  Constitution  having,  under  the  resolution 
of  the  Convention  of  1787  and  the  Act  of  Congress  of 
February,  178S,  gone  into  effect  on  the  first  Wednesday 
of  March,  1789,  a  statute  enacted  by  the  state  of  Virginia 
in  1788  was  not  affected  by  the  constitutional  prohibition.4 
So,  also,  a  statute  enacted  by  the  republic  of  Texas  before 
its  admission  into  the  United  States  as  the  state  of  Texas 
could  not  be  held  to  be  void  for  repugnancy  to  this  clause 
of  the  Constitution.5 

The  term  "law"  defined. 

57.  The  prohibition  of  the  passage  by  a  state  of  any 
"law  impairing  the  obligation  of  contracts,"  would,  if 
strictly  construed,  include  under  the  word  "law"  only 
statutes  enacted  by  state  legislatures,  but  it  has  been 
determined  that  the  word  "law"  comprehends,  in  addition 
to  acts  of  legislation,  state  constitutions  and  constitutional 
amendments ; 6  judicial  decisions  of  state  courts  of  last 

2Sturges  v.  Crowninshield,  4  Wheat.  122,  194.  See  also  Hanover  Nat. 
Bank  v.  Moyses,  186  U.  S.  181,  188;  30  Stat.  544,  c.  541;  32  Stat.  797,  c.  487. 

'Supra,  Chap.  II. 

4Owings  v.  Speed,  5  Wheat.  420. 

5  League  v.  De  Young,  11  How.  185,  203.  See  also  Scott  v.  Jones,  5 
How.  343,  378. 

6E.  Co.  v.  McClure,  10  Wall.  511;  White  v.  Hart,  13  id.  646;  Gunn  v. 
Barry,  15  id.  610;  County  of  Moultrie  v.  Eockingham  T.  C.  S.  Bank, 
92  U.  S.  631;  Edwards  v.  Kearzey,  96  id.  595;  Keith  v.  Clark,  97  id.  454; 
N.  O.  G.  Co.  v.  L.  L.  Co.,  115  id.  650;  Fisk  v.  Jefferson  Police  Jury, 


THE   TERM   "LAW"   DEFINED. 


139 


resort,  rendered  subsequently  to  the  making  of  the  con- 
tract in  question,  and  antecedently  to  the  suit  in  which  the 
court  determines  the  invalidity  of  the  contract,  and  alter- 
ing by  construction  the  constitution  and  statutes  of  the 
state  in  force  when  the  contract  was  made ; 7  and,  in  gen- 
eral, any  act  or  order,  from  whatever  source  emanating, 
to  which  a  state,  by  its  enforcement  thereof,  gives  the 
force  of  a  law ;  as,  for  instance,  a  by-law  or  ordinance  of  a 
municipal  corporation,8  or  a  statute  enacted  by  the  con- 
gress of  the  Confederacy,  and  enforced  during  the  war 
of  the  rebellion  by  a  court  of  a  state  within  the  insurgent 
lines.9  Obviously  the  law,  which  is  alleged  to  have  im- 
paired the  obligation  of  the  contract  must  have  been 
enacted  subsequently  to  the  making  of  the  contract,  for  a 
law  enacted  antecedently  to  the  making  of  the  contract 
can  be  said  to  have  entered  into,  and  become  part  of,  the 
contract.10  The  judgment  of  the  state  court  in  the  cause, 

116  id.  131;  Shreveport  v.  Cole,  129  id.  36;  Bier  v.  MeGehee,  148  id. 
137;  Hanford  v.  Davies,  163  id.  273;  H.  &  T.  C.  By.  v.  Texas,  170  id.  243. 

7  Gelpcke    v.    Dubuque,    1    Wall.    175 ;    Havemeyer   v.    Iowa    County,    3 
id.   294;    Chicago  v.  Sheldon,  9  id.  50;    The  City  v.  Lamson,  ibid.   477; 
Olcott  v.  The  Supervisors,  16  id.   678;   Douglass  v.  County  of  Pike,  101 
U.   S.   677;    County  of  Balls  v.  Douglass,   105   id.   728;    Pleasant   Town- 
ship v.  A.  L.  I.  Co.,  138  id.  67;   Loeb  v.  Columbia  Township  Trustees, 
179   id.   472,   492;    Wilkes   County   v.   Coler,    180   id.   506.      This   doctrine 
was  first  suggested  by  Taney,  C.  J.,  who  said,  in  O.  L.  I.  &  T.  Co.  v.  Debolt, 
16  How.  432 :    ' '  The  sound  and  true  rule  is,  that  if  the  contract  when  made 
was  valid  by  the  laws  of  the  state,  as  then  expounded  by  all  the  departments 
of  its  government  and  administered  in  its  courts  of  justice,  its  validity 
and  obligation  cannot  be  impaired  by  any  subsequent  act  of  the  legislature 
of  the  state  or  decision  of  its  courts,  altering  the  construction  of  the  law ; ' ' 
and  in  Gelpcke  v.  Dubuque,  1  Wall.  206,  Swayne,  J.,  quoted  the  dictum  of 
Taney,  C.  J.,  and  declared  it  to  be  "the  law  of  this  court." 

8  Walla  WaUa  v.  W.  W.  W.  Co.,  172  U.  S.  1;  St.  P.  G.  L.  Co.  v.  St.  Paul, 
181  id.  142 ;  Detroit  v.  D.  C.  S.  B..  184  id.  368. 

9  Williams  v.  Bruffy,  96  U.  S.  176;  Ford  v.  Surget,  97  id.  594;  Stevens 
v.  Griffith,  111  id.  48. 

10  L.  W.  Co.  v.  Easton,  121  U.  S.  388,  391;  Denny  v.  Bennett,  128  id. 
489;  Lake  County  v.  Bollins,  130  id.  662;  Pleasant  Township  v.  A.  L.  I. 
Co.,   138   id.   67;   Brown  v.    Smart,   145   id.   454;    Bier   v.   MeGehee,   148 

10 


140  .  IMPAIEMENT    OF    CONTRACTS. 

determining  the  particular  contract  to  be  invalid,  cannot 
be  said  to  be  a  law  impairing  the  obligation  of  the  con- 
tract, for  otherwise  the  federal  court  of  last  resort  would 
be  called  upon  to  "re-examine  the  judgments  of  the  state 
courts  in  every  case  involving  the  enforcement  of  con- 
tracts. "  As  Harlan,  J.,  said,  in  L.  W.  Co.  v.  Easton,11 
"The  state  court  may  erroneously  determine  questions 
arising  under  a  contract,  which  constitute  the  basis  of  the 
suit  before  it;  it  may  hold  a  contract  to  be  void,  which, 
in  our  opinion,  is  valid ;  it  may  adjudge  a  contract  to  be 
valid,  which,  in  our  opinion,  is  void ;  or  its  interpretation 
of  the  contract  may,  in  our  opinion,  be  radically  wrong ; 
but,  in  neither  of  such  cases,  would  the  judgment  be  re- 
viewable  by  this  court  under  the  clause  of  the  Constitution 
protecting  the  obligation  of  contracts  against  impairment 
by  state  legislation,  and  under  the  existing  statutes  defin- 
ing and  regulating  its  jurisdiction,  unless  that  judgment 
in  terms,  or  by  its  necessary  operation,  gives  effect  to  some 
provision  of  the  state  constitution,  or  some  legislative 
enactment  of  the  state,  which  is  claimed  by  the  unsuccess- 
ful party  to  impair  the  obligation  of  the  particular 
contract  in  question/'12  It  must,  therefore,  appear  in 

id.  137;  P.  I.  Co.  v.  Tennessee,  161  id.  193;  G.  &  S.  I.  E.  v.  Hewes, 
183  id.  66;  Pinney  v.  Nelson,  ibid.  144;  D.  G.  Co.  v.  U.  S.  G.  Co.,  187 
id.  611;  O.  W.  Co.  v.  Oshkosh,  187  id.  437;  Blackstone  v.  Miller,  188  id. 
189.  See  also  C.,  M.  &  St.  P.  By.  v.  Solan,  169  id.  133;  K.  W.  Co.  v. 
Knoxville,  189  id.  434. 

11 121  U.  S.  388,  392. 

"See  also  E.  Co.  v.  Bock,  4  Wall.  177,  181;  E.  Co.  v.  McClure,  10  id. 
511,  515;  Knox  v.  Exchange  Bank,  12  id.  379,  383;  Delmas  v.  Ins.  Co., 
14  id.  661,  665;  University  v.  People,  99  U.  S.  309,  319;  C.  L.  I.  Co.  v. 
Needles,  113  id.  574;  N.  O.  W.  W.  v.  L.  S.  Co.,  125  id.  18;  Kreiger 
v.  Shelby  E.,  ibid.  39;  H.  Bridge  Co.  v.  Henderson  City,  141  id.  679; 
St.  P.,  M.  &  M.  Ey.  v.  Todd  County,  142  id.  282;  Missouri  v.  Harris, 
144  id.  210;  Wood  v.  Brady,  150  id.  18;  C.  L.  Co.  v.  Laidley,  159  id. 
103;  Hanford  v.  Davies,  163  id.  273;  Turner  v.  Wilkes  County  Comrs., 
173  id.  461;  Wilkes  County  v.  Coler,  180  id.  506;  G.  &  S.  I.  E.  v.  Hewes, 
183  id.  66;  N.  O.  W.  Co.  v.  Louisiana,  185  id.  336;  N.  M.  B.  &  L. 
Assn.  v.  Brahan,  193  id.  635. 


JUDGMENTS   NOT    CONCLUSIVE.  141 

any  cause  in  which  it  is  sought  to  reverse  in  the  Supreme 
Court  of  the  United  States,  a  decree  or  judgment  of  a 
state  court  for  contravention  of  the  constitutional  pro- 
hibition of  the  impairment  of  contracts,  that  in  the  par- 
ticular case  the  state  court  enforced  to  the  prejudice  of 
the  plaintiff  in  error  some  act  of  state,  either  in  the  form 
of  a  state  constitution,  or  an  act  of  the  state  legislature, 
or  a  judgment  of  a  court  in  another  case,  or  an  act  of  an 
extrinsic  authority  to  which  the  state  by  its  adoption 
thereof  gave  the  force  of  law,  and  that  the  act  of  state, 
whatever  its  form,  was,  as  affecting  the  contract,  put  into 
operation  subsequently  to  the  making  of  the  con- 
tract. 

Judgments  of  state  courts  not  conclusive  either  as  to  the 
non-existence  or  non-impairment  of  contracts. 

58.  In  questions  under  this  clause  of  the  Constitution 
the  courts  of  the  United  States  do  not  accept  as  con- 
clusive upon  them  the  judgment  of  the  state  court  either 
as  to  the  non-existence  of  contracts  or  as  to  their  non- 
impairment,13  for,  if  the  decision  of  the  state  court  were 
to  be  accepted  without  inquiry  or  examination,  the  consti- 
tutional prohibition  would  be  nugatory. 

"State  Bank  v.  Knopp,  16  How.  369;  O.  L.  I.  &  T.  Co.  v.  Debolt, 
ibid.  416;  Jefferson  Branch  Bank  v.  Skelly,  1  Bl.  436;  Bridge  Proprietors 
v.  Hoboken  Co.,  1  Wall.  116;  Delmas  v.  Ins.  Co.,  14  id.  661;  Wright 
v.  Nagle,  101  U.  S.  791;  Williams  v.  Louisiana,  103  id.  637;  L.  &  N.  E. 
v.  Palmes,  109  id.  244;  Pleasant  Township  v.  A.  L.  I.  Co.,  138  id.  67; 
Bryan  v.  Board  of  Education,  151  id.  639;  M.  &  O.  E.  v.  Tennessee,  153 
id.  486;  Shelby  County  v.  Union  &  Planters'  Bank,  161  id.  149;  Woodruff 
v.  Mississippi,  162  id.  291;  Douglas  v.  Kentucky,  168  id.  488;  C.,  B.  &  Q. 
E.  v.  Nebraska,  170  id.  57;  McCullough  v.  Virginia,  172  id.  102;  Walsh 
v.  C.,  H.  V.  &  A.  E.,  176  id.  469;  I.  C.  E.  v.  Chicago,  ibid.  646;  H.  &  T. 
C.  E.  v.  Texas,  177  id.  66;  Stearns  v.  Minnesota,  179  id.  223;  Board 
of  Liquidation  v.  Louisiana,  ibid.  622;  F.  W.  Co.  v.  Freeport  City,  180  id. 
587;  St.  P.  G.  L.  Co.  v.  St.  Paul,  181  id.  142;  Wilson  v.  Standefer,  184  id. 
399;  cf.  Wagonner  v.  Flack,  188  id.  595. 


142  IMPAIRMENT   OF    CONTRACTS. 

The  obligation  of  a  contract  defined. 

59.  The  obligation  of  a  contract  is  the  duty  of  per- 
formance which  the  law  imposes  on  one,  or  other,  or 
both,  of  the  parties  to  the  contract.14    As  Marshall,  C.  J., 
said  in  the  case  cited,  "Any  law  which  releases  a  part 
of  this  obligation  must  in  the  literal  sense  of  the  word 
impair  it."    The  application  of  the  constitutional  prohi- 
bition is  not  dependent  on  the  extent  of  the  impairment  of 
vested  rights.15 

Legislation  as  to  remedies. 

60.  A  state  may,  without  impairment  of  the  obligation 
of  a  contract,  regulate,  or  even  limit,  the  remedies  for 
the  enforcement  of  that  contract,  provided  that  it  does 
not  take  away  all  remedies  therefor,  and  that  it  leaves  in 
force  a  substantial  remedy.16     Thus  a  state  may,  in  the 
case  of  a  corporation  whose  charter  requires  that  service 
of  process  on  the  corporation  shall  be  made  only  at  its 
principal  office,  provide  by  subsequent  legislation  that  such 
process  may  be  served  on  any  officer,  clerk,  or  agent  of 
the  corporation.17     A  state  may  abolish  imprisonment  for 

14  Sturges  v.  Crowninshield,  4  Wheat.  197.     See  also  Bedford  v.  E.  B.  & 
L.  Assn.,  181  U.  S.  227,  241. 

15  Green  v.  Biddle,  8  Wheat.  1.     But  where  a  charter  authorizing  the  con- 
solidation of  railways  was  modified  by  a  statute  prohibiting  the  consolida- 
tion of  competing  roads  before  such  consolidation  had  been  attempted,  the 
court  said:    "Where  the  charter  authorizes  the  company  in  sweeping  terms 
to  do  certain  things  which  are  unnecessary  to  the  main  object  of  the  grant, 
and  not  directly  and  immediately  within  the  contemplation  of  the  parties 
thereto,  the  power  so  conferred,  so  long  as  it  is  unexecuted,  is  within  the 
control  of  the  legislature  and  may  be  treated  as  a  license,  and  may  be 
revoked,  if  a  possible  exercise  of  such  power  is  found  to   conflict  with 
the  interests  of  the  public/'     "We  cannot  recognize  a  vested  right  to  do 
a  manifest  wrong:  "  Pearsall  v.  G.  N.  By.,  161  U.  S.  646,  673,  675.     See  also 
A.  By.  v.  New  York,  176  id.  335,  345. 

"And  it  may,  of  course,  grant  an  additional  remedy:  N.  O.  C.  &  L.  B. 
v.  New  Orleans,  157  U.  S.  219;  Wagonner  v.  Flack,  188  id.  595.  See 
also  Wilson  v.  Standefer,  184  id.  399. 

17  B.  Co.  v.  Hecht,  95  U.  S.  168;  C.  M.  L.  I.  Co.  v.  Spratley,  172  id.  602. 


LEGISLATION   AS   TO   REMEDIES.  143 

debt  as  a  remedy  for  breach  of  contract ; 18  it  may  validate 
technically  defective  mortgages,19  or  conveyances  by 
femes  covert ; 20  it  may  by  statute  grant  new  trials  and 
create  new  tribunals  to  set  aside  grants  or  reverse  judg- 
ments alleged  to  be  fraudulent ; 21  it  may  provide  speedy 
and  equitable  methods  for  determining  the  title  to  lands 
under  patents  granted  by  the  state;22  it  may  authorize 
at  the  request  of  all  parties  in  interest  the  discharge  of 
testamentary  trustees  of  real  estate ;  23  it  may  change  the 
rate  of  interest  to  be  paid  to  the  purchaser  in  the  case  of 
the  redemption  of  mortgaged  premises  sold  under  fore- 
closure ; 24  it  may  repeal  usury  laws  which  unrepealed 
would  have  avoided  the  contract ; 25  it  may  prescribe  a 
scheme  for  the  reorganization  of  an  embarrassed  corpor- 
ation and  provide  that  creditors  who  have  notice  of,  and 
do  not  dissent  from,  the  scheme  shall  be  bound  thereby ; 26 
it  may  reduce  the  limitation  of  time  for  bringing  suit 
provided  that  a  reasonable  limit  elapses  after  the  enact- 
ment before  the  limitation  bars  a  suit  upon  existing  con- 
tracts ; 27  it  may  require  registration  as  a  prerequisite  to 
the  legal  enforcement  of  existing  mortgages,  provided 
that  a  reasonable  period  be  allowed  before  the  law  goes 
into  effect ;  28  it  may  require  holders  of  tax  sale  certificates 
to  give  notice  to  the  occupant  of  the  land,  if  any  there  be, 

18  Mason  v.  Haile,  12  Wheat.  370;  Penniman's  Case,  103  IT.  S.  714. 

19  Gross  v.  U.  S.  Mtge.  Co.,  108  TJ.  S.  477. 

20  Eandall  v.  Kreiger,  23  Wall.  137. 

21  League  v.  De  Young,  11  How.  185. 

22  Jackson  v.  Lamphire,  3  Pet.  280. 

23  Williamson  v.  Suydam,  6  Wall.  723. 

24  C.  M.  L.  I.  Co.  v.  Cushman,  108  U.  S.  51 ;  -Hooker  v.  Burr,  194  id.  415. 

25  Ewell  v.  Daggs,  108  U.  S.  143. 

26  Gilfillan  v.  U.  C.  Co.,  109  U.  S.  401. 

27  Terry  v.   Anderson,   95   U.   S.   628;    Barrett  v.   Holmes,    102   id.   651; 
Koshkonong  v.  Burton,  104  id.  668;  In  re  Brown,  135  id.  701;   Wheeler 
v.    Jackson,    137    id.     245.      See    also    Wilson    v.  Iseminger,    185  id.    55; 
O.  W.  Co.  v.  Oshkosh,  187  id.  437. 

28  Vance  v.  Vance,  108  U.  S.  514. 


144  IMPAIRMENT   OF    CONTEACTS. 

before  taking  a  tax  deed ; 29  it  may  require  registration 
with  municipal  officials  of  judgments  against  a  munici- 
pality;30 it  may  provide  that  a  city  shall  not  be  sued 
until  the  claim  has  been  presented  to  the  city  council  and 
disallowed  by  it,  and  that,  thereupon,  an  appeal  to  court, 
if  made,  shall  be  made  within  a  limited  time ; 31  it  may 
free  shareholders  of  a  corporation  from  individual  liabil- 
ity for  debts  of  the  corporation  to  an  amount  greater  than 
their  shares,  for  such  legislation  does  not  impair  the  direct 
liability  of  the  corporation ; 32  it  may,  after  a  state  bank 
has  obtained  judgment  against  a  party,  authorize  that 
party  to  set  off  against  the  judgment  circulating  notes 
of  the  bank  procured  by  him  after  the  entry  of  the  judg- 
ment ; 33  it  may,  after  judgment  has  been  obtained,  reduce 
the  rate  of  interest  thereafter  to  accrue  on  that  judg- 
ment; 34  and,  a  disseised  tenant  for  years  being  entitled  to 
sue  on  the  landlord's  covenant  for  quiet  possession  and 
also  on  a  statutory  remedy  for  forcible  entry  and  detainer, 
the  state  may  take  away  the  statutory  remedy,  provided 
that  the  action  on  the  covenant  be  left  unimpaired.35  A 
state,  having  issued  bonds,  and  having  by  a  subsequent 
statute  provided  for  the  funding  of  those  bonds  on  certain 
terms  at  a  reduced  rate  of  interest,  may,  by  a  later  statute, 
prohibit  the  funding  of  a  specified  class  of  those  bonds 
until  by  judicial  decree  their  validity  shall  have  been 
determined,  for  the  original  remedy  of  the  bondholder  is 
not  thereby  impaired.36  So  also,  a  state,  which  has  con- 
tracted to  receive  its  taxes  in  the  notes  of  a  certain  bank, 

29  Curtis  v.  Whitney,  13  Wall.  68. 

80  Louisiana  v.  New  Orleans,  102  U.  S.  203. 

81  O.  W.  Co.  v.  Oshkosh,  187  U.  S.  437. 

82  Ochiltree  v.  K.  Co.,  21  Wall.  249. 
38  Blount  v.  Windley,  95  U.  S.  173. 

84  Morley  v.  L.  S.  &  M.  S.  By.,  146  U.  S.  162. 

"Drehman  v.  Stifle,  8  Wall.  595. 

86  Guarantee  Co.  v.  Board  of  Liquidation,  105  U.  S.  622. 


LEGISLATION   AS   TO   BEMEDIES.  145 

may,  by  statute,  provide  that  the  only  remedy  for  tax- 
payers whose  tender  of  such  notes  may  be  refused  shall 
be  to  pay  in  legal  money  and  within  a  time  limited  to 
bring  suit  against  the  tax  collector,  judgment  against 
whom  shall  be  a  preferred  claim  against  the  state.37  So 
also  where  the  laws  of  a  state  permit  coupons  of  state 
bonds  to  be  received  in  payment  of  state  taxes,  provided 
that  in  case  of  the  refusal  of  such  coupons  when  tendered 
the  holder  thereof  might  enforce  his  rights  under  the 
contract  by  suing  out  an  alternative  mandamus  against 
the  officer  refusing  the  coupons,  and  if  judgment  should 
be  rendered  in  favour  of  the  holder  of  the  coupons  that 
he  could  then  have  forthwith  a  peremptory  writ  of 
mandamus  for  the  recovery  of  damages  and  costs,  the 
obligation  of  the  contract  was  not  impaired  by  a  subse- 
quent statute  which  required,  in  case  of  the  refusal  of  the 
tender  of  the  coupons,  a  payment  of  the  state  taxes  in 
lawful  money,  and  a  lodging  of  the  coupons  in  a  state 
court  of  competent  jurisdiction,  and  the  subsequent  fram- 
ing of  an  issue  to  determine  whether  or  not  the  coupons 
were  genuine  and  legally  receivable  for  taxes,  with  a  right 
of  appeal  to  the  state  court  of  last  resort.38 

On  the  other  hand,  a  state,  in  acting  upon  the  remedy, 
cannot  take  away  all,  or  a  substantial  part,  of  the  power 
for  the  enforcement  of  a  contract.  It,  therefore,  cannot 
forbid  its  courts  to  entertain  jurisdiction  of  a  suit  to 
enforce,  or  obtain  damages  for  the  breach  of,  a  class  of 
contracts  legally  valid  when  made ; 39  nor  can  a  state 
forbid  its  courts,  after  the  abolition  of  slavery,  to  take 
jurisdiction  of  actions  upon  contracts  made  before  that 
abolition  and  the  consideration  for  which  was  the  price 

87  Tennessee  v.  Sneed,  96  U.  S.  69. 

38  Antoni  v.  Greenhow,  107  U.  S.  769;  Moore  v.  Greenhow,  114  id.  338. 

39  Van  Hoffman  v.  Quincy,  4  Wall.  552. 


146  IMPAIRMENT    OF    CONTRACTS. 

of  slaves;40  nor  could  a  state,  after  the  restoration  of 
peace,  declare  void  a  contract  made  between  its  citizens 
during  the  war  of  the  rebellion  stipulating  for  payment 
in  confederate  notes ;  41  nor  can  a  state,  after  the  making 
of  a  contract,  change  to  the  prejudice  of  either  party  the 
measure  of  damages  for  its  breach ; 42  nor  can  a  state,  by 
subsequent  legislation,  impose  as  a  condition  precedent 
to  the  legal  enforcement  of  a  contractual  right,  that  he 
who  seeks  to  enforce  that  right  shall  prove  an  extrinsic 
and  independent  fact  that  has  no  necessary  connection 
with  the  right  to  be  enforced,  as,  for  instance,  that  he 
never  bore  arms  in  support  of,  or  never  aided,  the  re- 
bellion against  the  United  States ; 43  or  that  he  has  paid 
certain  taxes;  nor  can  it  permit  the  defendant  to  set  off 
damages  not  caused  by  the  plaintiff,  as,  for  instance,  the 
defendant's  loss  of  property  resulting  from  the  war  of 
the  rebellion ; 44  nor  can  a  state,  after  a  judgment  has  been 
enrolled,  materially  increase  the  debtor's  exemption;45 
nor  can  a  state  after  the  making  of  a  mortgage  enlarge 
the  period  of  time  allowed  for  the  redemption  after  fore- 
closure ; 46  nor  forbid  a  sale  in  foreclosure  at  which  less 
than  two-thirds  of  the  value  of  the  mortgaged  premises 
as  fixed  by  appraisement  shall  be  realized ; 47  nor  take 
away  the  right  to  compound  interest,  if  given  by  the  law 
existing  at  the  time  of  the  making  of  the  contract ; 48  nor 

40  White  v.  Hart,  13  Wall.  646. 

41  Delmas  v.  Insurance  Co.,  14  Wall.  661. 

^Effinger  v.  Kenney,  115  U.  S.  566;  W.  &  W.  E.  v.  King,  91  id.  3. 
48  Pierce  v.  Carskadon,  16  Wall.  234. 

44  Walker  v.  Whitehead,  16  Wall.  314. 

45  Gunn  v.  Barry,  15  Wall.  610. 

46  Barnitz  v.  Beverly,  163  U.  S.  118.      See  also  Bradley  v.  Lightcap,  195  id. 
1 ;  cf.  Hooker  v.  Burr,  194  id.  415. 

47Bronson  v.  Kinzie,  1  How.  311;  McCracken  v.  Hayward,  2  id.  608; 
Gantly  v.  Ewing,  3  id.  707. 

48  Koshkonong  v.  Burton,  104  U.  S.  668 ;  cf.  Morley  v.  L.  S.  &  M.  S.  By., 
146  id.  162. 


THE   TERM    "CONTRACTS"    DEFINED.  147 

repeal  a  statute  in  force  at  the  time  of  making  the  contract 
which  renders  the  stock  of  a  shareholder  liable  for  the 
debts  of  the  corporation;49  nor  materially  change  the 
rules  of  evidence  which  were  in  existence  when  the  con- 
tract was  made.50 

The  term  "  contracts  "  defined. 

61.  The  term  ' i  contracts, ' '  as  used  in  the  constitutional 
prohibition,  includes  both  executory  and  executed  con- 
tracts,51 comprehending,  within  the  former  class,  promis- 
sory notes  and  bills  of  exchange,52  corporate  bonds,53 

*  Hawthorne  v.  Calef,  2  Wall.  10. 

80  Bryan  v.  Virginia,  135  U.  S.  685. 

61  * '  Contract ' '  is,  as  Field,  J.,  said  in  Louisiana  v.  Mayor  of  New  Orleans, 
109  U.  S.  285,  288,  "used  in  the  Constitution  in  its  ordinary  sense  as 
signifying  the  agreement  of  two  or  more  minds  for  consideration  pro- 
ceeding from  one  to  the  other  to  do  or  not  to  do  certain  acts. ' '  In  Sturges 
v.  Crowninshield,  4  Wheat.  122,  197,  Marshall,  C.  J.,  said:  "A  contract  is 
an  agreement  in  which  a  party  undertakes  to  do  or  not  to  do  a  particular 
thing. ' '  Marshall,  C.  J.,  said,  in  Fletcher  v.  Peck,  6  Cr.  87,  136 :  "A  con- 
tract is  a  compact  between  two  or  more  parties,  and  is  either  executory  or 
executed.  An  executory  contract  is  one  in  which  a  party  binds  himself  to 
do,  or  not  to  do,  a  particular  thing.  ...  A  contract  executed  is  one  in 
which  the  object  of  contract  is  performed,  and  this,  says  Blackstone,  differs 
in  nothing  from  a  grant.  .  .  .  Since  then,  in  fact,  a  grant  is  a  contract 
executed,  the  obligation  of  which  still  continues,  and  since  the  Constitution 
uses  the  general  term  '  contracts, '  without  distinguishing  between  those 
which  are  executory  and  those  which  are  executed,  it  must  be  construed 
to  comprehend  the  latter  as  well  as  the  former."  In  Dartmouth  College 
v.  Woodward,  4  Wheat.  629,  Marshall,  C.  J.,  said:  "The  provision  of  the 
Constitution  never  has  been  understood  to  embrace  other  contracts  than 
those  which  respect  property  or  some  object  of  value  and  confer  rights 
which  may  be  asserted  in  a  court  of  justice."  Daniel,  J.,  said,  in  Butler 
v.  Pennsylvania,  10  How.  402,  416:  "The  contracts  designed  to  be  pro- 
tected .  .  .  are  contracts  by  which  perfect,  certain,  definite,  fixed,  private 
rights  of  property  are  vested." 

52  Sturges  v.  Crowninshield,  4  Wheat.  122;  McMillan  v.  McNeill,  iUd. 
209;  Farmers  &  Mechanics'  Bank  v.  Smith,  6  id.  131;  Ogden  v.  Saunders, 
12  id.  213;  Boyle  v.  Zacharie,  6  Pet.  635;  Suydam  u.  Broadnax,  14  id. 
67;  Cook  v.  Moffat,  5  How.  295;  Baldwin  v.  Hale,  1  Wall.  223. 

58  State  Tax  on  Foreign-held  Bonds  Case,  15  WaU.  300. 


148  IMPAIRMENT   OF    CONTRACTS. 

municipal  bonds,54  and  municipal  contracts  for  the  pay- 
ment of  the  salaries  of  their  employes 55  and,  generally,  all 
legally  enf orcible  contracts  to  do,  or  not  to  do,  any  par- 
ticular act;  and,  within  the  latter  class,  grants  and  judg- 
ments founded  upon  contracts,56  but  not  judgments 
founded  upon  torts ; 57  nor  is  marriage  a  contract  which 
may  not  be  impaired  by  divorce  legislation.58 

There  can  be  no  impairment  of  the  obligation  of  a 
contract  which  has  not  been  legally  made.59  Thus  a  vote 
of  the  majority  of  the  qualified  voters  of  a  county  at  an 
election  held  under  a  statute  incorporating  a  railway  and 
authorizing  an  issue  of  the  bonds  of  the  county  in  pay- 
ment for  the  stock  of  the  railway,  if  the  qualified  voters 
so  decide  it,  does  not  constitute  a  contract  whose  obliga- 
tion would  be  impaired  by  an  amendment  of  the  state 

"County  of  Moultrie  v.  Bockingham  T.  C.  S.  Bank,  92  U.  S.  631;  Mobile 
v.  Watson,  116  id.  289.  But  see  Meriwether  v.  Garrett,  102  id.  472. 

66  Fisk  v.  Jefferson  Police  Jury,  116  U.  S.  131. 

^Blount  v.  Windley,  95  U.  S.  173;  Memphis  v.  U.  S.,  97  id.  293;  Wolff 
v.  New  Orleans,  103  id.  358;  Louisiana  v.  Pilsbury,  105  id.  278;  Balls 
County  Court  v.  U.  S.,  ibid.  733;  Nelson  v.  St.  Martin's  Parish,  111  id. 
716;  Mobile  v.  Watson,  116  id.  289;  cf.  Morley  v.  L.  S.  &  M.  S.  By.,  146 
id.  162. 

"Louisiana  v.  New  Orleans,  109  U.  S.  285;  Freeland  v.  Williams,  131 
id.  405. 

58  Hunt  v.  Hunt,  131  U.  S.  clxv;  Maynard  v.  Hill,  125  id.  190. 

59Aspinwall  v.  Daviess  County,  22  How.  364;  Morgan  v.  Louisiana,  93 
U.  S.  217;  Wadsworth  v.  Supervisors,  102  id.  534;  Norton  v.  Board  of 
Conors,  of  Brownsville,  129  id.  479;  Lake  County  v.  Bollins,  130  id. 
662;  Lake  County  v.  Graham,  ibid.  674;  Campbell  v.  Wade,  132  id.  34; 
Pleasant  Township  v.  A.  L.  I.  Co.,  138  id.  67;  New  Orleans  v.  N.  O.  W. 
W.,  142  id.  79;  H.  G.  L.  Co.  v.  Hamilton  City,  146  id.  258;  I.  C.  B.  v. 
Illinois,  ibid.  387;  Bier  v.  McGehee,  148  id.  137;  Citizens7  S.  &  L.  Assn., 
v.  Perry  County,  156  id.  692;  Woodruff  v.  Mississippi,  162  id.  291; 
C.  M.  L.  I.  Co.  v.  Spratley,  172  id.  602;  Los  Angeles  v.  L.  A.  W.  Co.,  177 
id.  558;  Weber  v.  Bogan,  188  id.  10;  Zane  v.  Hamilton  County,  189 
id.  370;  U.  B.  v.  City  of  New  York,  193  id.  416;  cf.  C.,  M.  &  St.  P. 
By.  v.  Solan,  169  id.  133;  Gunnison  County  Comrs.  v.  Bollins,  173  id. 
255;  H.  &  T.  C.  B.  v.  Texas,  177  id.  66;  Waite  v.  Santa  Cruz,  184  id. 
302;  Tulare  Irr.  Dist.  v.  Shepard,  185  id.  1. 


THE   TEEM   "  CONTRACTS"   DEFINED.  149 

constitution,60  or  by  a  repeal  of  the  statute,61  before  the 
subscription  be  made  or  the  bonds  issued.  So,  also,  bonds 
which  are  fraudulently  put  into  circulation  by  a  state 
treasurer  after  they  have  been  declared  void  by  the  state 
constitution  cannot  impose  any  liability  upon  the  state.62 
And  a  contract  which  is  void  because  its  execution  is 
beyond  the  powers  of  the  municipality 63  or  county 64  at- 
tempting its  execution  cannot  irrevocably  bind  the  munici- 
pality or  county.  Moreover  a  state  cannot  enter  into  an 
irrepealable  contract  by  a  conveyance  of  property  in  dis- 
regard of  a  public  trust  under  which  it  is  bound  to  hold 
and  manage  that  property,  as  in  the  case  of  a  conveyance 
of  soil  under  navigable  waters.65  On  the  same  principle, 
a  state  statute  which  is  void  by  reason  of  repugnancy  to 
the  Constitution  of  the  United  States  cannot  constitute  a 
contract  of  exemption  from  state  taxation ;  as,  for  instance, 
a  statute  imposing  taxation  on  national  banks  to  an  extent 
not  permitted  by  the  National  Banking  Act,  and,  there- 
fore, a  subsequent  state  statute  imposing  on  national 
banks  a  taxation  which,  though  a  heavier  burden  than  that 
imposed  by  the  earlier  statute,  is  yet  within  the  limits 

80  Aspinwall  v.  Daviess  County,  22  How.  364. 

61Wadsworth  v.  Supervisors,  102  U.  S.  534;  cf.  Campbell  v.  Wade,  132 
id.  34. 

02  Bier  v.  McGehee,  148  U.  S.  137. 

63  Norton  v.  Board  of  Comrs.  of  BrownsviUe,  129  U.  S.  479;  Pleasant 
Township  v.  A.  L.  I.  Co.,  138  id.  67. 

"Lake  County  v.  Eollins,  130  U.  S.  662;  Lake  County  v.  Graham,  ibid. 
674;  Zane  v.  Hamilton  County,  189  id.  370;  cf.  Gunnison  County  Comrs. 
v.  Eollins,  173  id.  255;  H.  &  T.  C.  E.  v.  Texas,  177  id.  66. 

"I.  C.  E.  v.  Illinois,  146  U.  S.  387,  460.  Two  justices  took  no  part  in 
the  decision  and  three  justices  dissented.  See  also  I.  C.  E.  v.  Illinois,  184 
id.  77;  M.  T.  Co.  v.  Mobile,  187  id.  479.  In  Pearsall  v.  G.  N.  Ey., 
161  id.  646,  where  a  charter  authorizing  the  consolidation  of  railways 
was  modified  by  a  statute  prohibiting  the  consolidation  of  competing  roads, 
before  any  such  consolidation  had  been  attempted,  the  court  said:  "We 
cannot  recognize  a  vested  right  to  do  a  manifest  wrong. "  And  see  L.  & 
N.  E.  v.  Kentucky,  183  id.  503,  518. 


150  IMPAIRMENT    OF    CONTEACTS. 

permitted  by  the  National  Banking  Act,  does  not  impair 
the  obligation  of  any  contract.66  On  the  same  principle, 
a  statutory  exemption  from  state  taxation,  if  granted  in 
violation  of  the  constitution  of  the  state,  does  not  bind  the 
state  as  a  contract.67 

State  insolvent  laws. 

62.  There  was,  for  some  time,  a  controversy  as  to  the 
effect  of  the  constitutional  prohibition  upon  state  in- 
solvent laws.  In  Sturges  v.  Crowninshield,68  the  action 
being  brought  in  a  federal  court  within  the  state  of  Massa- 
chusetts, and  the  plaintiff  being  a  citizen  of  Massachusetts, 
and  the  defendant  a  citizen  of  New  York,  it  was  held  that 
a  discharge  under  an  insolvent  law  of  New  York,  enacted 
subsequently  to  the  making  within  that  state  of  a  contract 
to  be  performed  within  the  state,  was  void  as  an  impair- 
ment of  the  obligation  of  that  contract.  In  McMillan  v. 
McNeill,69  the  action  being  brought  in  a  court  of  the  state 
of  Louisiana,  the  plaintiff  and  defendant  both  being  citi- 
zens of  South  Carolina,  and  the  contract  having  been 
made  and  stipulated  to  be  performed  in  that  state,  it  was 
held  that  a  discharge  under  an  antecedently-enacted  law 
of  Louisiana  impaired  the  obligation  of  the  contract,  and 
was  no  bar  to  its  enforcement.  In  F.  &  M.  Bank  v. 
Smith,70  the  action  being  brought  in  a  court  of  the  state  of 
Pennsylvania,  and  both  plaintiff  and  defendant  being 
residents  of  that  state,  and  the  contract  having  been  made, 
and  to  be  performed,  in  that  state,  it  was  held  that  a  dis- 

68  People  v.  Commissioners  of  Taxes,  94  U.  S.  415. 

8TTrask  v.  Maguire,  18  Wall.  391;  Morgan  v.  Louisiana,  93  U.  S.  217; 
Shields  v.  Ohio,  95  id.  319;  E.  Cos.  v.  Gaines,  97  id.  697;  K.  &  W.  B.  v. 
Missouri,  152  id.  301;  P.  I.  Co.  v.  Tennessee,  161  id.  193;  G.  &  S.  I.  B.  v. 
Hewes,  183  id.  66;  cf.  Lake  County  v.  Graham,  130  id.  674. 

68  4  Wheat.  122. 

69  4  Wheat.  209. 

70  6  Wheat.  131. 


STATE   INSOLVENT   LAWS.  151 

charge  under  a  subsequently  enacted  insolvent  law  of  that 
state  was  no  bar  to  the  action.  In  Ogden  v.  Saunders,71 
the  plaintiff  being  a  citizen  of  Kentucky  and  the  defend- 
ant a  citizen  of  New  York,  the  contract  having 
been  made  in  New  York  to  be  performed  in  that  state, 
and  the  action  having  been  brought  in  a  federal 
court  in  the  state  of  Louisiana,  it  was  held  that  a  dis- 
charge under  an  antecedently-enacted  insolvent  law  of  the 
state  of  New  York  was  no  bar  to  the  action ;  and  in  Shaw 
v.  Bobbins,72  the  same  ruling  was  made,  the  action  being 
brought  in  a  court  of  the  state  of  Ohio,  the  plaintiff 
being  a  citizen  of  Massachusetts,  the  defendant  a  citizen 
of  New  York,  and  the  discharge  set  up  being  one  that  had 
been  obtained  under  an  antecedently-enacted  insolvent 
law  of  the  last-mentioned  state.  In  Boyle  v.  Zacharie,73 
Story,  J.,  said,  "The  effect  of  the  discharge  under  the  in- 
solvent act  is  of  course  at  rest,  so  far  as  it  is  covered  by 
the  antecedent  decisions  made  by  this  court.  The  ulti- 
mate opinion  delivered  by  Mr.  Justice  Johnson  in  the  case 
of  Ogden  v.  Saunders,74  was  concurred  in  and  adopted  by 
the  three  judges,  who  were  in  the  minority  upon  the 
general  question  of  the  constitutionality  of  state  insolvent 
laws,  so  largely  discussed  in  that  case,"  and75  Marshall, 
C.  J.,  expressed  the  same  view  as  to  the  effect  of  the  judg- 
ment in  Ogden  v.  Saunders.  In  Sudyam  v.  Broadnax,76 
the  action  having  been  brought  in  a  court  of  the  state  of 
Alabama,  the  plaintiff  being  a  citizen  of  New  York,  it  was 
held  that  a  judicial  declaration  of  the  insolvency  of  a 
decedent's  estate  under  the  terms  of  an  antecedently- 

71 12  Wheat.  213. 

72 12  Wheat.  369,  note. 

78  6  Pet.  643. 

74 12  Wheat.  213,  358. 

75  P.  635. 

78 14  Pet.  67. 


152  IMPAIRMENT    OF    CONTKACTS. 

enacted  statute  of  Alabama  was  powerless  to  discharge  a 
contract  made  by  the  decedent  in  his  lifetime  in  New  York 
and  stipulated  to  be  performed  in  that  state.  In  Cook  v. 
Moffat,77  the  action  being  brought  in  a  federal  court  in 
the  state  of  Maryland,  the  plaintiff  being  a  citizen  of  New 
York  and  the  defendant  a  citizen  of  Maryland,  and  the 
contract  having  been  made  in  New  York  to  be  performed 
in  that  state,  it  was  held  that  a  discharge  under  an  antece- 
dently-enacted statute  of  Maryland  was  no  bar  to  the  ac- 
tion. In  Baldwin  v.  Hale,78  the  action  having  been  brought 
in  a  federal  court  in  the  state  of  Massachusetts,  the  plain- 
tiff being  a  citizen  of  Vermont  and  the  defendant  a  citizen 
of  Massachusetts,  and  the  contract  having  been  made  in 
Massachusetts,  to  be  performed  in  that  state,  it  was  held 
that  a  discharge  under  an  antecedently-enacted  statute  of 
Massachusetts  did  not  bar  the  action.  The  result  of  the 
cases  is,  that  a  discharge  under  the  insolvent  laws  of  a 
state  is  not  a  bar  to  an  action  on  a  contract  for  the  pay- 
ment of  money,  first:  when  the  law  under  which  the  dis- 
charge has  been  granted  has  been  enacted  subsequently 
to  the  making  of  the  contract; 79  second:  when,  although 
the  discharge  has  been  granted  under  a  law  enacted 
antecedently  to  the  making  of  the  contract,  the  contract 
was  made  in  another  state  to  be  performed  in  that  other 
state;80  third:  when,  although  the  discharge  has  been 
granted  under  a  law  enacted  antecedently  to  the  making 
of  the  contract,  and  although  the  contract  was  made  and 
to  be  performed  in  the  state  in  which  the  discharge  has 
been  granted,  the  action  upon  the  contract  is  brought  in 
another  state,  by  a  party  who  is  not  a  citizen  of  the  state 

"5  How.  295. 
78 1  Wall.  223. 

79Sturges  v.  Crowninshield,  4  Wheat.  122;  F.  &  M.  Bank  v.  Smith,  6 
id.  131. 

80  McMillan  v.  McNeill,  4  Wheat.  209;  Cook  v.  Moffat,  5  How.  295. 


JUDGMENTS   AS    CONTRACTS.  153 

granting  the  discharge,  and  who  has  not  made  himself  a 
party  to  the  proceedings  in  insolvency ; 81  and  fourth, 
when,  although  the  discharge  has  been  granted  under  a 
law  enacted  antecedently  to  the  making  of  the  contract, 
and  although  the  contract  was  made  and  to  be  performed 
in  the  state  in  which  the  discharge  has  been  granted,  the 
action  upon  the  contract  is  brought  in  the  state  granting 
the  discharge  by  one  who  is  not  a  citizen  of  that  state,  and 
who  has  not  made  himself  a  party  to  the  proceedings  in 
insolvency.82  The  questions,  as  yet  not  concluded  by  the 
authority  of  the  court,  are  as  to  the  effect  of  the  discharge 
as  regards  creditors,  who,  though  not  citizens  of  the  state 
granting  the  discharge,  voluntarily  become  parties  to  the 
insolvency  proceedings,  or,  who,  being  citizens  of  the  state 
granting  the  discharge,  and  being  duly  notified  of  the  in- 
solvency proceedings,  neglect  or  refuse  to  become  parties 
thereto. 

Judgments  as  contracts. 

63.  Contracts  for  the  payment  of  money  being  within 
the  protection  of  the  constitutional  prohibition  of  the  im- 
pairment of  their  obligation,  judgments  upon  such  con- 
tracts are  equally  entitled  to  protection.83  Therefore,  a 
judgment  against  a  municipal  corporation  founded  upon 
a  breach  of  contract  is  not  affected  by  a  subsequent  legis- 
lative abolition  of  the  municipality's  power  to  levy  taxes 
for  the  payment  of  its  debts.84  But  the  rights  of  a  judg- 
ment creditor  are  not  impaired  by  a  state  statute  reducing 

^Ogden  v.  Saunders,  12  Wheat.  213;  Shaw  v.  Bobbins,  ibid.  369,  note. 
See  also  Denny  v.  Bennett,  128  U.  S.  489. 

82  Baldwin  v.  Hale,  1  Wall.  223. 

88Blount  v.  Windley,  95  U.  S.  173. 

84  Memphis  v.  U.  S.,  97  U.  S.  293;  Wolff  v.  New  Orleans,  103  id.  358; 
Louisiana  v.  Pilsbury,  105  id.  278;  Kails  County  Court  v.  U.  S.,  ibid.  733; 
Nelson  v.  St.  Martin's  Parish,  111  id.  716;  Mobile  v.  Watson,  116  id. 
289;  Scotland  County  Court  v.  U.  S.,  140  id.  41. 


154  IMPAIRMENT    OF    CONTRACTS. 

the  rate  of  interest  thereafter  to  accrue  upon  existing 
judgments ; 85  nor  are  judgments  founded  upon  torts  con- 
tracts whose  obligation  will  be  protected  against  subse- 
quent legislation.86 

Municipal  taxation. 

64.  A  state  cannot  take  away  from  a  municipality  ex- 
isting powers  of  taxation  so  as  to  deprive  of  his  com- 
pensation an  officer  who  has  served  his  term.87  County 
bonds  issued  by  public  officers  under  authority  of  law 
either  upon  the  subscription,  or  upon  the  agreement  to 
subscribe,  to  the  stock  of  a  railway  constitute  a  contract 
between  the  county  and  the  bondholders,  whose  obligation 
cannot  be  impaired  by  a  subsequent  legislative  repeal  of 
the  statute  authorizing  the  subscription,  or  by  a  subse- 
quent amendment  to  the  state  constitution  prohibiting 
such  a  subscription.88  But  where  public  officers  are  by 
statute  authorized  to  issue  bonds  in  aid  of  railway  con- 
struction only  upon  the  fulfilment  of  a  condition  pre- 
cedent which  is  not  fulfilled  before  the  adoption  of  an 
amended  state  constitution  prohibiting  the  issue  of  such 
bonds  there  is  no  contract  whose  obligation  is  impaired 
by  the  adoption  of  the  state  constitution.89  On  the  same 
principle,  a  statutory  authorization  of  borrowing  of 
money  by  a  municipality  is  not  a  contract  between  the 
state  and  the  municipal  creditors  whose  obligation  can 
be  impaired  by  the  subsequent  exercise  by  the  state  of 
the  power  of  modifying  the  rate  of  taxation  or  of  ex- 
empting certain  property  from  taxation,90  but  a  state 

85  Morley  v.  L.  S.  &  M.  S.  Ey.,  146  U.  S.  162. 

88  Louisiana  v.  New  Orleans,  109  U.  S.  285;  Freeland  v.  Williams,  131 
id.  405. 

87  Fisk  v.  Jefferson  Police  Jury,  116  U.  S.  131. 

88  County  of  Moultrie  v.  Eockingham  T.  C.  S.  Bank,  92  U.  S.  631. 

89  E.  Co.  v.  Falconer,  103  U.  S.  821. 

90  Gilman  v.  Sheboygan,  2  Bl.  510. 


HISTORY   OF    THE   PROHIBITION.  155 

cannot  dissolve  an  existing  municipal  corporation  having 
a  bonded  debt,  for  whose  payment  powers  of  taxation 
have  been  granted  and  specifically  pledged,  for  that  disso- 
lution interferes  with  the  exercise  of  such  power  of 
taxation.91  Nor  can  a  state  withdraw  or  restrict  the 
taxing  power  of  a  municipality  so  as  to  impair  the  obliga- 
tion of  contracts  which  have  been  made  on  the  pledge, 
express  or  implied,  that  that  taxing  power  shall  be 
exercised  for  their  fulfilment.92  A  statutory  prohibition 
of  the  issuing  by  the  courts  of  the  state  of  a  mandamus  to 
compel  the  levying  of  a  tax  for  the  payment  of  the  interest 
upon,  or  the  principal  of,  municipal  bonds,  whose  issue 
had  been  legally  authorized,  impairs  the  contract  between 
the  municipality  and  the  bondholder.93  In  general,  the 
statutory  authorization  of  the  contracting  by  a  municipal- 
ity of  an  extraordinary  debt  by  the  issue  of  negotiable 
securities  therefor  conclusively  implies  a  power  in  the 
municipality  to  levy  taxes  sufficient  to  pay  the  accruing 
interest  upon,  and  the  matured  principal  of,  the  debt, 
unless  the  statute  conferring  the  authority,  or  the  consti- 
tution of  the  state,  or  some  general  law  in  force  at  the 
time,  clearly  manifests  a  contrary  legislative  intent.94 

History  of  the  prohibition. 

65.  It  has  never  been  doubted  that  contracts  between 
individuals  were  protected  by  the  constitutional  provision, 
but  it  was  formerly  a  matter  of  grave  doubt  whether  or 
not  contracts  to  which  a  state  was  a  party  were  likewise 

91  Mobile   v.   Watson,   116   U.   S.   289.     But   see  Meriwether   v.   Garrett, 
102  id.  472. 

92  Memphis  v.  U.  S.,  97  U.  S.  293;  Wolff  v.  New  Orleans,  103  id.  358; 
EaUs  County  Court  v.  U.  S.,  105  id.  733;  Nelson  v.  St.  Martin's  Parish, 
111  id.  716;  Seibert  v.  Lewis,  122  id.  284;  Scotland  County  Court  v.  U.  S., 
140  id.  41. 

93  Louisiana  v.  Pilsbury,  105  U.  S.  278. 

94  Balls  County  Court  v.  U.  S.,  105  U.  S.  733. 

11 


156  IMPAIRMENT   OF    CONTRACTS. 

entitled  to  protection.  The  history  of  the  Constitution 
shows  clearly  that  the  mischiefs  which  the  framers  of 
the  Constitution  intended  to  remedy  by  this  prohibition 
were,  primarily,  those  caused  by  state  legislation  enabling 
debtors  to  discharge  their  debts  otherwise  than  as 
stipulated  in  their  contracts,  and  that  the  prohibition  was 
not  intended  by  its  originators  to  interfere  with  the  exer- 
cise of  state  sovereignty  in  cases  of  other  than  private 
contracts.  This  restriction  on  the  power  of  the  states  is 
not  to  be  found  in  either  Mr.  Pinckney's,  Mr.  Hamilton's, 
or  Mr.  Paterson's  pro  jets  as  presented  to  the  convention, 
nor  is  it  implied  in  Mr.  Madison's  resolutions,  nor  does  it 
appear  in  the  draft  reported  by  the  Committee  of  Five  on 
6th  August,  1787 ;  but  when  Article  XIII  of  the  report  of 
that  committee  was  under  consideration  on  28th  August, 
Mr.  King  "moved  to  add  in  the  words  used  in  the  ordi- 
nance of  Congress  establishing  new  states,  a  prohibition 
on  the  states  to  interfere  in  private  contracts,"  but,  on 
motion  of  Mr.  Rutledge,  as  a  substitute  for  Mr.  King's 
proposition,  there  was  adopted  a  prohibition  of  state  bills 
of  attainder  and  ex  post  facto  laws.95  The  journal  of  the 
convention  mentions  Mr.  Rutledge 's  motion,  but  omits 
all  reference  to  Mr.  King's  proposition.  Mr.  Madison 
reports  Mr.  King's  resolution,  with  the  mention  of  dec- 
larations of  opinion  in  favour  of  it  by  Messrs.  Sherman, 
Wilson  and  Madison,  and  objections  to  it  by  Messrs. 
Gouverneur  Morris  and  Mason,  on  the  ground  that  state 
laws  limiting  the  times  within  which  actions  might  be 
brought  necessarily  interfered  with  contracts,  and  ought 
not  to  be  prohibited,  and  that  there  might  be  other  cases 
in  which  such  interferences  would  be  proper.  There  does 
not  seem  to  be  any  record  of  any  other  discussion  of  this 
subject  in  the  convention.  The  Committee  of  Revision 

95  Madison  Papers,  5  Elliot's  Debates,  485. 


HISTOKY    OF    THE   PROHIBITION.  157 

reported  on  12th  September,  1787,  to  the  convention  their 
revised  draft  of  the  Constitution,  in  which  Article  I, 
Section  10,  declares  "No  state  shall  .  .  .  pass  any  .  .  . 
laws  altering  or  impairing  the  obligation  of  contracts/' 
In  convention  on  Friday,  14th  September,  1787,  the  clause 
was  finally  amended  and  put  into  the  form  in  which  it 
appears  in  the  Constitution,  there  being,  so  far  as  is 
known,  no  debate  on  the  subject,  save  by  Mr.  Gerry,  who 
"entered  into  observations  inculcating  the  importance 
of  the  public  faith  and  the  propriety  of  the  restraint  put 
on  the  states  from  impairing  the  obligation  of  contracts," 
and  unavailingly  endeavoured  to  obtain  the  insertion  in 
the  Constitution  of  a  similar  restraint  upon  congressional 
action.96  Mr.  Bancroft  states,97  with  reference  to  the 
Committee  of  Revision's  report,  that  "Gouverneur 
Morris  retained  the  clause  forbidding  ex  post  facto  laws — 
and  resolute  not l  to  countenance  the  issue  of  paper  money 
and  the  consequent  violation  of  contracts, '  " 98  he  of 
himself  added  the  words,  '  '  No  state  shall  pass  laws  alter- 
ing or  impairing  the  obligation  of  contracts. ' ' 99  Mr. 
Bancroft  also  quotes  from  the  official  report  to  the  Gov- 
ernor of  Connecticut  made  by  Eoger  Sherman  and  Oliver 
Ellsworth,  the  deputies  from  that  state  to  the  Federal 
Convention,  wherein  they  say,  "The  restraint  on  the 
legislatures  of  the  several  states  respecting  emitting  bills 
of  credit,  making  anything  but  money  a  tender  in  payment 
of  debts,  or  impairing  the  obligation  of  contracts  by  ex 
post  facto  laws,  was  thought  necessary  as  a  security  to 
commerce,  in  which  the  interest  of  foreigners,  as  well  as 
of  the  citizens  of  different  states,  may  be  affected. ' '  The 
clause  does  not  appear  to  have  been  made  a  subject  of 

96 Madison  Papers,  5  Elliot's  Debates,  546. 

97  2  Hist,  of  the  Constitution,  214. 

98  G.  Morris,  by  Sparks,  III,  323. 
"Gilpin,  1552,  1581. 


158  IMPAIRMENT    OF    CONTRACTS. 

discussion  in  any  of  the  state  conventions  called  to  ratify 
the  Constitution.  Mr.  Hamilton,  when  Secretary  of  the 
Treasury,  said  in  his  memorandum  of  28th  May,  1790,  to 
President  Washington  on  the  subject  of  the  resolutions  of 
Congress  with  regard  to  the  arrears  of  pay  due  to  certain 
soldiers  of  the  Revolution,100  "The  Constitution  of  the 
United  States  interdicts  the  states  individually  from  pass- 
ing any  law  impairing  the  obligation  of  contracts.  This, 
to  the  more  enlightened  part  of  the  community,  was  not 
one  of  the  least  recommendations  of  that  Constitution. 
The  too  frequent  intermeddlings  of  the  state  legislatures, 
in  relation  to  private  contracts  were  extensively  felt,  and 
seriously  lamented ;  and  a  Constitution  which  promised  a 
prevention,  was,  by  those  who  felt  and  thought  in  that 
manner,  eagerly  embraced. "  Mr.  Madison  said  in  the 
Federalist,1  "Bills  of  attainder,  ex  post  facto  laws,  and 
laws  impairing  the  obligation  of  contracts,  are  contrary 
to  the  first  principles  of  the  social  compact,  and  to  every 
principle  of  sound  legislation.  The  two  former  are  ex- 
pressly prohibited  by  the  declarations  prefixed  to  some 
of  the  state  constitutions,  and  all  of  them  are  prohibited 
by  the  spirit  and  scope  of  these  fundamental  charters. 
Our  own  experience  has  taught  us,  nevertheless,  that  addi- 
tional fences  against  these  dangers  ought  not  be  omitted. 
Very  properly,  therefore,  have  the  convention  added  this 
constitutional  bulwark  in  favour  of  personal  security  and 
private  rights;  and  I  am  much  deceived,  if  they  have 
not,  in  so  doing,  as  faithfully  consulted  the  genuine  senti- 
ments as  the  undoubted  interests  of  their  constituents. 
The  sober  people  of  America  are  weary  of  the  fluctuating 
policy  which  has  directed  the  public  councils.  They  have 
seen  with  regret  and  with  indignation,  that  sudden 

100 Works  of  Hamilton,  Lodge's  Edition,  Vol.  II,  p.  147. 
1No.  XLIV,  Lodge's  Edition. 


HISTORY   OF   THE   PROHIBITION.  159 

changes,  and  legislative  interferences,  in  cases  affecting 
personal  rights,  become  jobs  in  the  hands  of  enterprising 
and  influential  speculators,  and  snares  to  the  more  indus- 
trious and  less  informed  part  of  the  community.  They 
have  seen,  too,  that  one  legislative  interference  is  but  the 
first  link  of  a  long  chain  of  repetitions ;  every  subsequent 
interference  being  naturally  produced  by  the  effects  of  the 
preceding.  They  very  rightly  infer,  therefore,  that  some 
thorough  reform  is  wanting,  which  will  banish  specula- 
tions on  public  measures,  inspire  a  general  prudence  and 
industry,  and  give  a  regular  course  to  the  business  of 
society. "  In  Sturges  v.  Crowninshield,2  Marshall,  C.  J., 
said  ' '  The  fair,  and,  we  think,  the  necessary  construction  of 
the  sentence  requires  that  we  should  give  these  words  their 
full  and  obvious  meaning.  A  general  dissatisfaction  with 
that  lax  system  of  legislation  which  followed  the  war  of 
our  revolution  undoubtedly  directed  the  mind  of  the  con- 
vention to  this  subject.  It  is  probable  that  laws,  such  as 
those  which  have  been  stated  in  argument,  produced  the 
loudest  complaints,  were  most  immediately  felt.  The  at- 
tention of  the  convention,  therefore,  was  particularly 
directed  to  paper  money,  and  to  acts  which  enabled  the 
debtor  to  discharge  his  debt  otherwise  than  as  stipulated 
in  the  contract.  Had  nothing  more  been  intended,  nothing 
would  have  been  expressed.  But,  in  the  opinion  of  the 
convention,  much  more  remained  to  be  done.  The  same 
mischief  might  be  effected  by  other  means.  To  restore 
public  confidence  completely,  it  was  necessary  not  only  to 
prohibit  the  use  of  particular  means  by  which  it  might  be 
effected,  but  to  prohibit  the  use  of  any  means  by  which  the 
same  mischief  might  be  produced.  The  convention  ap- 
pears to  have  intended  to  establish  a  great  principle,  that 
contracts  should  be  inviolable.  The  Constitution,  there- 

2  4  Wheat.  205. 


160  IMPAIRMENT    OF    CONTRACTS. 

fore,  declares  that  no  state  shall  pass  i  any  law  impairing 
the  obligation  of  contracts. '  ' ' 

State  grants. 

66.  In  1810  the  judgment  in  Fletcher  v.  Peck3  estab- 
lished the  doctrine  that  contracts  to  which  a  state  is  a 
party  are  within  the  protection  of  the  constitutional 
prohibition.  The  facts  in  that  case  were  these:  in  1795 
the  state  of  Georgia  enacted  a  statute  authorizing  the 
issue  of  a  patent  to  "the  Georgia  Co."  for  a  tract  of  land 
in  that  state,  and  on  13th  January,  1795,  the  patent  was 
issued.  By  sundry  mesne  conveyances  before  1796  title  in 
fee  to  a  part  of  the  tract  vested  in  Peck,  who  had  pur- 
chased for  value  and  without  notice  of  any  matter  which 
could  invalidate  the  title  of  the  state's  grantees.  In  1796 
the  state  of  Georgia  enacted  a  statute  repealing  the  Act  of 
1795  and  annulling  the  patent  to  the  Georgia  Co.  On  14th 
May,  1803,  Peck  conveyed  to  Fletcher,  covenanting,  inter 
alia,  that  his  title  had  been  "in  no  way  constitutionally  or 
legally  impaired  by  virtue  of  any  subsequent  act  of  any 
subsequent  legislature  of  the  state  of  Georgia."  Fletcher 
brought  covenant  sur  deed  against  Peck  in  the  Circuit 
Court,  declaring,  inter  alia,  that  the  statute  of  1796  was 
enacted  by  reason  of  fraud  practiced  in  securing  the 
enactment  of  the  statute  of  1795  and  was  an  impairment 
of  Peck's  title.  Peck  pleaded  that  he  was  a  purchaser 
for  value  and  without  notice,  etc.  Fletcher  demurred, 
and  the  court  entered  judgment  thereon  for  Peck,  which 
judgment  was  affirmed  in  the  Supreme  Court  on  a  writ 
of  error,  the  ground  of  decision  being,  that  the  constitu- 
tional prohibition  comprehends  contracts  executed,  includ- 
ing grants,  as  well  as  contracts  executory,  and  that  the 
states  being  prohibited  from  passing  "any  bill  of 

8  6  Cr.  87. 


EXPRESS   EXEMPTION   FROM   TAXATION.  161 

attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts, ' '  and  the  prohibition  of  bills  of  attainder 
and  ex  post  facto  laws  being  a  restraint  upon  govern- 
mental action,  there  is  not  to  be  implied  "in  words  which 
import  a  general  prohibition  to  impair  the  obligation  of 
contracts,  an  exception  in  favour  of  the  right  to  impair  the 
obligation  of  those  contracts  into  which  the  state  may 
enter."  It  has,  therefore,  since  1810,  been  settled  that 
the  term  "contract"  includes  not  only  contracts  between 
individuals,  private  and  corporate,  but  also  contracts, 
executed  and  executory,  between  the  state  and  individuals, 
private  and  corporate.  Following  in  the  line  of  Fletcher 
v.  Peck,  it  has  been  held  that,  a  grant  of  land  by  a  state 
to  a  railway  corporation  is  a  contract  whose  obligation  is 
impaired  by  a  subsequent  act  resuming  the  land,4  that  a 
state  cannot  deprive  of  his  right  to  recover  mesne  profits 
from  a  disseisor  one  whose  title  vested  under  a  compact 
between  that  state  and  another  state,  and  who  under  that 
compact  was  entitled  to  recover  mesne  profits,5  and  that 
a  state  cannot,  by  statute,  divest  religious  corporations  of 
their .  title  to  land  acquired  under  colonial  laws  ante- 
cedently to  the  revolution.6 

Express  contracts  of  exemption  from  taxation. 

67.  When  in  1812  the  case  of  New  Jersey  v.  Wilson7 
came  before  the  Supreme  Court,  the  doctrine  of 
Fletcher  v.  Peck  necessarily  required  the  court  to  hold 
that  the  state  was  bound  by  the  express  contract  con- 
tained in  a  statute  which  authorized  the  purchase  of 
certain  land  for  the  remnant  of  the  tribe  of  Delaware 


4  Davis  v.  Gray,  16  Wall.  203;  H.  &  T.  C.  By.  v.  Texas,  170  U.  S.  243; 
cf.  A.  By.  v.  New  York,  176  id.  335. 

5  Green  v.  Biddle,  8  Wheat.  1. 

6  Terrett  v.  Taylor,  9  Cr.  43. 

7  7  Cr.  164. 


162  IMPAIRMENT    OF    CONTRACTS. 

Indians,  and  which,  in  terms,  declared  that  the  land  so 
purchased  " shall  not  hereafter  be  subject  to  any  tax," 
and  that  that  contract  forbade  the  subsequent  taxation  of 
such  lands,  after  their  sale  to  other  parties  with  the  state 's 
consent.  The  legal  inviolability  of  a  state's  contract  to 
exempt  lands  from  state  taxation  having  been  thus  estab- 
lished, it  followed  that  a  similar  contract  with  regard  to 
corporate  franchises  or  assets  was  entitled  to  the  like 
protection,  and  that  contracts  of  exemption  from  state 
taxation,  contained  in  corporate  charters,  or  stipulated 
by  subsequent  agreement,  if  made  in  express  terms  and 
supported  by  an  adequate  consideration,  constitute  con- 
tracts so  binding  upon  the  state  that  their  obligation 
cannot  be  impaired  by  a  subsequent  repeal  of  the  charter, 
or  by  an  imposition  of  a  rate  of  taxation  inconsistent  with 
the  state's  contract.8  Thus,  the  line  and  rolling  stock  of 
a  railway  cannot  be  taxed  when  its  charter  exempts  from 
taxation  its  "property"  and  "shares;"9  nor  can  the 
shares  of  the  capital  stock  of  a  corporation  be  taxed  in 
the  hands  of  the  shareholders,  when  the  charter  requires 
the  corporation  to  pay  to  the  state  a  tax  on  each  share  of 
the  stock  "in  lieu  of  all  other  taxes;" 10  nor  can  the  gross 
receipts  of  a  corporation  be  taxed  when  its  charter  ex- 
empts the  corporation  from  taxation;  n  nor  can  a  corpor- 

8  Jefferson  Branch  Bank  v.   Skelly,   1  Bl.  436;   Chicago  v.   Sheldon,  9 
Wall.  50;  W.  &  E.  E.  v.  Eeid,  13  id.  264;  E.  &  G.  E.  v.  Eeid,  ibid.  269  j 
Humphrey   v.   Pegues,    16   id.   244;    P.   E.   v.   Maguire,    20   id.   36;    New 
Jersey  v.  Yard,  95  U.  S.  104;  University  v.  People,  99  id.  309;  Asylum  v. 
New  Orleans,  105  id.  362;   W.  &  W.  E.  v.  Alsbrook,  146  id.  279;   M.  & 
O.  E.   v.   Tennessee,   153   id.   486;    Shelby   County  v.   Union  &  Planters' 
Bank,    161   id.   149;    Stearns   v.   Minnesota,    179   id.    223;    Citizens'    Bank 
v.  Parker,  192  id.  73;  cf.  G.  &  S.  I.  E.  v.  Hewes,  183  id.  66. 

9  W.  &  E.  E.  v.  Eeid,  13  Wall.  264;  C.  E.  &  B.  Co.  v.  Wright,  164  U.  S.  327. 

10  Farrington  v.   Tennessee,  95  U.   S.  679;   Bank  of  Commerce  v.   Ten- 
nessee,   161   id.   134,   163   id.   416;    Shelby   County  v.   Union   &   Planters' 
Bank,  161  id.  149. 

u  P.  E.  v.  Maguire,  20  WaU.  36. 


EXPRESS   EXEMPTION    FROM    TAXATION.  163 

ation  be  taxed  in  excess  of  the  limits  specifically 
designated  in  the  charter,12  or  other  contract.13  Nor  can 
a  municipal  corporation,  in  the  exercise  of  authority 
delegated  to  it  by  statute,  assess  a  street  railway  for  a  new 
paving  of  a  street,  when  the  railway  has  contracted  with 
the  municipality  to  keep  the  street  in  repair,  for  the 
acceptance  of  that  contract  limits  by  necessary  implication 
the  obligation  of  the  railway  to  repairs,  and  relieves  it 
from  liability  for  betterments ; 14  nor  can  property  held 
by  a  charitable  corporation  as  an  investment  be  taxed, 
when  its  charter  exempts  from  taxation  all  property  of 
whatever  kind  or  description  belonging  to,  or  owned  by,  the 
corporation.15  An  adequate  consideration  for  a  charter 
exemption  from  taxation  is  to  be  found  in  the  exercise  by 
the  corporation  of  the  powers  conferred  by  the  charter,16 
or,  in  the  case  of  corporations  for  charitable  purposes,  in 
the  contribution  of  funds  to  the  corporation  for  the  ac- 
complishment of  its  benevolent  purpose.17  So  also  the 
building  by  a  railway  corporation  of  its  line,  under  the 
terms  of  a  statute  amendatory  of  its  charter  and  granting 
in  express  terms  an  exemption  from  taxation,  constitutes 
a  consideration  for  the  exemption,  though  the  original 
charter  granted  a  power  to  the  corporation,  which  it  did 
not  exercise,  to  build  the  line.18  Statutory  exemptions 
from  state  taxation  not  incorporated  in  charters  and  un- 
supported by  a  consideration  moving  to  the  state,  or  from 
the  exempted  corporation,  do  not  constitute  irrepealable 

12  B.  &  G.  E.  v.  Eeid,  13  Wall.  269. 

18  New  Jersey  v.  Yard,  95  U.  S.  104. 

"Chicago  v.  Sheldon,  9  Wall.  50. 

15  University  v.  People,  99  U.  S.  309;  Asylum  v.  New  Orleans,  105  id. 
362. 

18  C.  Ey.  v.  C.  S.  E.,  166  U.  S.  557. 

"University  v.  People,  99  U.  S.  309;  Asylum  v.  New  Orleans,  105 
%d.  362. 

"Humphrey  v.  Pegues,  16  Wall.  244. 


164  IMPAIRMENT    OF    CONTRACTS. 

contracts  of  exemption,  but  are  subject  to  modification  or 
repeal  in  the  exercise  of  legislative  discretion;  as,  for 
instance,  bounty  laws  offering  such  an  exemption  as  an 
inducement  for  the  organization  of  corporations  to 
develop  a  particular  industry,19  or  voluntary  grants  of 
exemption  of  the  real  property  of  a  charity  from  taxa- 
tion.20 

If  the  constitution  of  a  state  prohibits  legislative  grants 
of  exemption  from  state  taxation,  such  a  grant,  though 
accepted  in  good  faith  by  the  exempted  corporation, 
cannot  constitute  a  contract  whose  obligation  is  impaired 
by  a  subsequent  imposition  of  taxation.21  Such  a  consti- 
tutional prohibition  operates  to  extinguish  an  exemption 
made  by  contract  in  the  case  of  a  railway  which,  having 
been  exempted  before  the  adoption  of  the  constitutional 
prohibition,  had  been  after  the  adoption  thereof  sold 
under  foreclosure  to  reorganize  the  corporation.22  On 
the  same  principle,  a  statutory  consolidation  of  two  rail- 
ways works  the  dissolution  of  the  original  corporation, 
and  subjects  the  consolidated  corporation  to  the  operation 
of  an  amended  state  constitution,  which  took  effect  subse- 
quently to  the  incorporation  of  the  original  corporations, 
but  prior  to  their  consolidation;  and,  therefore,  the  state 
legislature  may,  without  impairment  of  the  obligation  of 
the  contract,  prescribe  rates  for  the  transportation  of 
passengers  by  the  consolidated  corporation,  though  one  of 
the  original  corporations  was  by  charter  protected  against 

18  Salt  Co.  v.  East  Saginaw,  13  WaU.  373;  Welch  v.  Cook,  97  U.  S.  541; 
W.  &  M.  Ey.  v.  Powers,  191  id.  379. 

20  Christ   Church   v.   Philadelphia,   24   How.    300;    Grand   Lodge  v.   New 
Orleans,  166  U.  S.  143. 

21  E.  Cos.  v.  Gaines,  97  U.  S.  697;  G.  &  S.  I.  E.  Co.  v.  Hewes,  183  id. 
66;   cf.  Stearns  v.  Minnesota,   179  id.  223,   253;   N.   C.  Ey.  v.  Maryland, 
187  id.  258. 

22Trask  v.  Maguire,  18  Wall.  391;  Morgan  v.  Louisiana,  93  U.  S.  217; 
People  v.  Cook,  148  id.  397.  See  also  Memphis  City  Bank  v.  Tennessee, 
161  id.  186 ;  P.  Ins.  Co.  v.  Tennessee,  ibid.  193. 


EXPKESS    EXEMPTION    FROM    TAXATION.  165 

such  legislative  regulation.23  General  statutory  prohi- 
bitions of  the  exemption  of  corporations  from  state 
taxation  are  not  binding  on  subsequent  legislatures,24 
unless  referred  to  in,  and  incorporated  with,  subsequently 
granted  charters.25  In  the  case  of  a  statutory  consolida- 
tion accepted  by  two  railways,  each  of  whose  charters 
contained  a  limited  exemption  from  taxation,  a  reserva- 
tion by  a  general  statute  before  the  enactment  of  the 
consolidating  act  and  incorporated  therewith,  operates  to 
extinguish  the  limited  exemption  contained  in  the 
original  charters.26  Of  course,  if  the  state  in  the 
charter  reserves  the  right  to  alter,  modify,  or  repeal  that 
charter,  that  reservation  authorizes  any  such  amendment 
of  the  charter  granted  as  will  not  defeat  nor  substantially 
impair  the  obligation  of  the  grant  or  any  rights  that  may 
be  vested  thereunder.27  The  first  suggestion  of  any  such 
reservation  is  to  be  found  in  the  judgment  of  Parsons, 
C.  J.,  in  Wales  v.  Stetson,28  which  is  cited  by  Miller,  J.,  in 
Greenwood  v.  Freight  Co.29  A  provision  in  a  charter,  or 
a  general  statute  incorporated  therewith,  that  that  char- 
ter shall  not  be  alterable  in  any  other  manner  than  by  an 
act  of  the  legislature,  operates  as  a  reserved  power 

28  Shields  v.  Ohio,  95  U.  S.  319. 

24  New  Jersey  v.  Yard,  95  U.  S.  104. 

25  Greenwood   v.    Freight   Co.,    105    U.    S.    13 ;    Tomlinson   v.   Jessup,    15 
Wall.  454. 

26  E.  Co.  v.  Georgia,  98  U.  S.  359. 

27  Close  v.  Glenwood  Cemetery,  107  U.  S.  466 ;  S.  C.  S.  Ey.  v.  Sioux  City, 
138   id.   98;    L.   W.   Co.   v.   Clark,    143   id.   1;    H.   G.  L.   Co.   v.   Hamilton 
City,   146   id.   258;    People  v.   Cook,   148  id.   397;    N.   Y.   &  N.   E.   E.   v. 
Bristol,  151  id.  556;   Bryan  v.  Board  of  Education,  Hid.  639;   C.  Ey.  v. 
C.    S.    E.    166    id.    557;    Covington    v.    Kentucky,    173    id.    231;    Citizens' 
Savings  Bank  v.   Owensboro,  ibid.   636;    Looker  v.  Maynard,   179  id.  46; 
G.  &  S.  I.  E.  v.  Hewes,  183  id.  66;  B.  W.  S.  Co.  v.  Mobile,  186  id.  212; 
cf.   Stearns  v.  Minnesota,.  179  id.   223,  239.     See  also  Pearsall  v.  G.   N. 
Ey.,    161   id,    646;    N.   C.   Ey.   v.   Maryland,    187   id.    258;    Wright   v.   M. 
M.  L.  I.  Co.,  193  id.  657. 

28  2  Mass.  146. 
"*105  U.  S.  13,  19. 


166  IMPAIRMENT   OF    CONTRACTS. 

authorizing  a  statutory  amendment  of  the  charter.30  Ex- 
press contracts  of  exemption  from  state  taxation  are  to  be 
strictly  construed.31  Thus  a  charter  of  a  railway  impos- 
ing an  annual  tax  assessed  on  the  cost  of  the  line,  reserving 
the  right  to  impose  taxes  on  the  gross  earnings  of  the 
corporation  and  stipulating  that  the  above  several  taxes 
shall  be  in  lieu  of  other  taxation,  is  not  a  contract  whose 
obligation  is  impaired  by  a  subsequent  statute  taxing  lands 
owned  by  the  railway  and  mortgaged  as  security  for  its 
bonded  debt,  but  not  used  in  the  construction  or  operation 
of  its  line.32  So  a  provision  in  the  charter  of  a  ferry 
company  that  it  "shall  be  subject  to  the  same  taxes  as  are 
now  or  hereafter  may  be  imposed  on  other  ferries, ' '  does 
not  exempt  the  corporation  from  liability  to  pay  an  annual 
license  fee  on  each  of  its  boats,  under  the  requirements  of 
a  municipal  ordinance  enacted  under  due  legislative 
authority.33  So  the  charter  of  a  street  railway  requiring 
the  payment  to  the  municipality  of  such  annual  license 
"as  is  now  paid  by  other  railway  companies,"  is  to  be 
construed  to  mean  that  the  company  shall  not  at  any 
future  time  be  required  to  pay  a  greater  license  than  that 
then  required  to  be  paid  by  other  companies.34  So  a  gen- 
eral exemption  of  the  property  of  a  corporation  from 

80  Pennsylvania  College  Cases,  13  Wall.  190;  Miller  v.  State,  15  id.  478; 
Holyoke  Company  v.  Lyman,  ibid.  500. 

81  Tucker  v.  Ferguson,  22  Wall.  527;   E.  Cos.  v.  Gaines,  97  U.  S.  697; 
Ey.  Co.  v.  Philadelphia,  101  id.  528;   Picard  v.  E.   T.,  V.  &  G.  E.,  130 
id.  637;  Y.  &  M.  V.  E.  v.  Thomas,  132  id.  174;  W.  &  W.  E.  v.  Alsbrook, 
146  id.  279;  W.  &  St.  P.  L.  Co.  v.  Minnesota,  159  id.  526;  P.  F.  &  M. 
I.  Co.  v.  Tennessee,  161  id.  174;  Central  E.  &  B.  Co.  v.  Wright,  164  id. 
327;  Ford  v.  D.  &  P.  L.  Co.,  ibid.  662;  Citizens'  Savings  Bank  v.  Owens- 
boro,  173  id.  636;  Wells  v.  Savannah,  181  id.  531;   Orr  v.  Gilman,  183 
id.  278;  Chicago  Theological  Seminary  v.  Illinois,  188  id.  662;  cf.  Citizens' 
Bank  v.  Parker,  192  id.  73. 

82  Tucker  v.  Ferguson,  22  Wall.  527.     See  also  Ford  v.  D.  &  P.  L.  Co., 
164  U.  S.  662. 

88  W.  F.  Co.  v.  East  St.  Louis,  107  U.  S.  365. 
84  Ey.  Co.  v.  Philadelphia,  101  U.  S.  528. 


EXPKESS   EXEMPTION   FKOM    TAXATION.  167 

taxation  is  construed  as  referring  only  to  the  property 
held  for  the  transaction  of  the  business  of  the  company.35 
And  the  exemption  of  the  capital  of  a  corporation  from 
taxation  does  not  necessarily  exempt  its  stockholders  from 
taxation  on  their  shares  of  stock.36  Nor  does  a  statute  by 
which  lands  granted  to  a  railway  company  are  exempted 
from  taxation  until  such  lands  shall  be  sold  and  conveyed 
by  that  company  remain  operative  after  the  full  equitable 
title  has  been  transferred  by  the  railway.37  A  charter 
granting  to  a  corporation  all  the  rights,  powers,  and 
privileges  "granted  by  the  charter "  of  another  corpora- 
tion, confers  an  exemption  from  state  taxation  contained, 
not  in  the  charter  to  which  reference  is  made,  but  in  a 
statute  amendatory  thereof,  and  the  exemption  thus  con- 
ferred constitutes  a  contract  whose  obligation  cannot  be 
impaired  by  a  subsequent  repeal  of  the  statute  conferring 
by  reference  the  right  of  exemption.38  So  a  state  may 
make  a  contract  conferring  the  exclusive  right  of  building 
a  toll  bridge  by  reference  to  a  previously  enacted  statute.39 
On  the  other  hand,  the  incorporation  of  a  railway  by  a 
charter  investing  the  company  "f  or  the  purpose  of  making 
and  using  the  said  road  with  all  powers,  rights,  and  privi- 
leges, and  subject  to  the  disabilities  and  restrictions  that 
have  been  conferred  and  imposed  upon"  another  railway 
company,  whose  charter  contained  an  express  exemption 
from  taxation,  does  not  confer  that  exemption  on  the 
former  company.40  So  in  the  case  of  the  merger  of  a 
corporation  having  an  exemption  from  state  taxation  for 

35  Ford  v.  D.  &  P.  L.  Co.,  164  II.  S.  662. 

38 New  Orleans  v.  Citizens'  Bank,  167  U.  S.  371;  cf.  Shelby  County  v. 
Union  &  Planters'  Bank,  161  id.  149. 

87  W.  &  St.  P.  L.  Co.  v.  Minnesota,  159  U.  S.  526. 

38  Humphrey  v.  Pegues,  16  Wall.  244. 

39Binghamton  Bridge,  3  Wall.  51. 

40  E.  Cos.  v.  Gaines,  97  U.  S.  697.  See  also  G.  &  S.  I.  E.  v.  Hewes,  183 
id.  66. 


168  IMPAIRMENT    OF    CONTRACTS. 

a  limited  period  with  another  corporation  having  an  un- 
limited exemption,  the  consolidating  statute  not  granting 
any  exemption,  the  consolidated  corporation  cannot  claim 
as  to  property  acquired  from  the  first  mentioned  corpora- 
tion any  exemption  beyond  the  limits  contained  in  the 
charter  of  that  corporation.41  So  also  a  grant  of  im- 
munity from  taxation  will  not  pass  merely  by  a  convey- 
ance of  the  property  and  franchises  of  a  railroad  com- 
pany, although  such  company  may  hold  its  property 
exempt  from  taxation.42 

Express  grants  of  peculiar  privileges. 

68.  Express  stipulations  in  a  charter  as  to  the  privileges 
thereby  conferred  on  the  corporation  are  also  within  the 
protection  of  the  constitutional  prohibition;  thus,  a  pro- 
vision in  the  charter  of  a  toll  bridge  company  that  it  shall 
not  be  lawful  for  any  person  to  erect  another  bridge 
within  a  specified  distance  of  the  bridge  thereby  author- 
ized, constitutes  a  contract  binding  the  state  not  to 
authorize  the  construction  of  such  other  bridge,43  but  the 
authorization  by  the  state  of  the  construction  of  a  railway 
viaduct  does  not  impair  the  obligation  of  such  a  contract.44 
So,  also,  a  statute  forbidding  the  transfer  by  any  bank  of 
any  note,  bill  receivable,  or  other  evidence  of  debt,  impairs 
the  obligation  of  a  contract  created  by  the  grant  in  a 
charter  of  a  bank  of  power  to  receive,  hold,  and  grant 
chattels  and  effects  of  what  kind  soever,  and  to  receive 

41  Tomlinson  v.  Branch,  15  Wall.  460;  W.  &  W.  K.  v.  Alsbrook,  146 
U.  S.  279.  See  also  P.  G.  &  C.  Co.  v.  Chicago,  194  id.  1. 

^Picard  v.  E.  T.,  V.  &  G.  E.,  130  U.  S.  637;  People  v.  Cook,  148  id. 
397;  N.  C.  Ey.  v.  Maryland,  187  id.  258.  See  also  N.  &  W.  E.  v.  Pendle- 
ton,  156  id.  667;  C.  &  L.  T.  E.  Co.  v.  Sandford,  164  id.  578. 

43  Bridge  Proprietors  v.  Hoboken  Co.,  1  Wall.  116 ;  Binghamton  Bridge, 
3  id.  51;  ef.  Williams  v.  Wingo,  177  U.  S.  601. 

"Bridge  Proprietors  v.  Hoboken  Co.,  1  Wall.  116. 


EXPRESS   GRANTS   OF   PECULIAR   PRIVILEGES.  169 

deposits  and  discount  notes.45  On  the  same  principle,  a 
state  is  bound  by  its  express  contracts,  not  including 
appointments  to  public  office,  between  the  state  and  an 
individual  for  the  performance  of  special  services  for  a 
stipulated  compensation,46  by  its  grants  of  franchises  and 
exclusive  privileges,  such  as  the  privilege  of  supplying  a 
municipality  with  water,47  or  gas,48  by  its  contracts  con- 
ceding peculiar  privileges  to  state  obligations,  as,  for 
instance,  stipulating  that  coupons  of  state  bonds  should  be 
receivable  for  taxes,49  or  that  the  circulating  notes  of  a 
bank  should  be  receivable  in  payment  for  taxes,50  or  of 
other  debts  due  to  the  state,51  by  contracts  made  by  a 
political  subdivision  of  the  state  for  the  payment  of  the 
principal  of,  or  interest  upon,  the  public  debt  of  that  sub- 
division,52 and  by  the  contracts  of  a  corporation,  whose 
sole  shareholder  is  the  state,  for  the  payment  of  the 
corporate  debt.53  Contracts  between  two  or  more  states, 
under  which  private  rights  have  vested,54  are  so  far 
protected  that  neither  state  can  annul  or  modify  such 
contracts  to  the  prejudice  of  the  private  rights  so 
vested. 

45 Planters'  Bank  v.  Sharp,  6  How.  301. 

46  Hall  v.  Wisconsin,  103  U.  S.  5;  cf.  Missouri  v.  Walker,  125  id.  339. 

47  N.  O.  W.  W.  v.  Eivers,  115  U.  S.  674;  St.  T.  W.  W.  v.  N.  O.  W.  W., 
120  id.   64;    Walla   Walla  v.   W.   W.   W.   Co.,    172   id.   1.      See   also   Los 
Angeles  v.  L.  A.  W.  Co.,  177  id.  558;  F.  W.  Co.  v.  Freeport,  180  id.  587; 
S.  W.  W.  Co.  v.  Skaneateles,  184  id.  354. 

48  N.  O.  G.  Co.  v.  L.  L.  Co.,  115  IT.  S.  650;  L.  G.  Co.  v.  C.  G.  Co.,  ibid.  683. 
"Hartman  v.  Greenhow,  102  U.  S.  672;  Virginia  Coupon  Cases,  114  id. 

270;  Eoyall  v.  Virginia,  116  id.  572,  121  id.  102;  McGahey  v.  Virginia,  135 
id.  662;  McCullough  v.  Virginia,  172  id.  102. 

50Furman  v.  Nichol,  8  Wall.  44;  Keith  v.  Clark,  97  U.  S.  454. 

51  Woodruff  v.  Trapnall,  10  How.  190;  Paup  «.  Drew,  ibid.  218;  Trigg 
v.  Drew,  ibid.  224. 

"Murray  v.  Charleston,  96  U.  S.  432. 

58  Curran  v.  Arkansas,  15  How.  304 ;  Barings  v.  Dabney,  19  Wall.  1. 

64  Green  v.  Biddle,  8  Wheat.  1;  C.  &  C.  Bridge  Co.  v.  Kentucky,  154 
U.  S.  204. 


170  IMPAIRMENT    OF    CONTKACTS. 

Contracts  between  a  state  and  its  political  subdivisions. 

69.  There  can  be  no  contract  between  a  state  and  a 
political  subdivision  of  a  state,  such  as  a  municipality, 
giving  to  the  municipality  a  vested  right  to  property,  for 
all  such  property  rights  are  held  by  the  municipality  in 
trust  for  the  state,  and  are  subject  to  revocation  at  the 
state's    pleasure.55      Therefore,    a    statute    imposing    a 
pecuniary  penalty  upon  a  railway,  payable  by  it  to  a 
county  of  the  state  for  its  failure  to  locate  the  railway  on 
a  certain  line,  does  not  constitute  a  contract  between  the 
county  and  the  railway  whose  obligation  is  impaired  by  a 
subsequent  repeal  of  the  statute.56     On  the  same  principle, 
a  legislative  charter  of  a  railway,  granting  to  it  power  to 
appropriate  public  wharves  erected  by  a  municipality 
under  a  prior  legislative  grant  of  authority,  does  not  im- 
pair the  obligation  of  any  contract,  nor  infringe  upon  the 
rights  of  the  municipality.57     And  a  grant  to  a  township 
of  the  power  of  taxation  is  always  subject  to  revocation, 
modification,  and  control  by  the  legislative  authority  of 
the  state.58 

Implied  contracts  in  charters  of  incorporation. 

70.  The  next  mooted  question  under  this  clause  of  the 
Constitution  was  whether  or  not  a  charter  of  incorpora- 
tion granted  by  a  state  constituted  an  implied  contract 
on  the  part  of  the  state,  whose  obligation  the  state  could 
not  be  permitted  to  impair  by  a  subsequent  repeal  or 
modification  of  the  charter.     The  leading  case  is  Trustees 
of  Dartmouth  College  v.  Woodward,59  judgment  in  which 

55  Maryland  v.  B.  &  O.  E.,  3  How.  534;  East  Hartford  v.  H.  Bridge  Co., 
10  id.  511;  E.  Co.  v.  Ellerman,  105  U.  S.  166;  New  Orleans  v.  N.  O. 
W.  W.,  142  id.  79;  cf.  Essex  Pub.  Eoad  Board  v.  Skinkle,  140  id.  334. 

06  Maryland  v.  B.  &  O.  E.,  3  How.  534. 

57  E.  Co.  v.  Ellerman,  105  U.  S.  166. 

68  Williamson  v.  New  Jersey,  130  U.  S.  189. 

59  4  Wheat.  518. 


GKANTS   TO   MUNICIPALITIES.  171 

was  rendered  in  1819,  and  the  facts  in  which  were  that,  in 
1769,  the  royal  governor  of  the  province  of  New  Hamp- 
shire, acting  in  the  name  of  the  king,  granted  to  Dr. 
Wheelock  and  eleven  other  persons  a  charter,  whereby 
they  were  incorporated  under  the  title  of  "The  Trustees 
of  Dartmouth  College,"  with  perpetual  succession,  and 
with  "the  whole  power  of  governing  the  college,  of  ap- 
pointing and  removing  tutors,  of  fixing  their  salaries,  of 
directing  the  course  of  study  to  be  pursued  by  the  stu- 
dents, and  of  filling  vacancies  created  in  their  own  body. ' ' 
After  the  charter  had  been  granted  to,  and  accepted  by, 
the  corporation,  "property  both  real  and  personal,  which 
had  been  contributed  for  the  benefit  of  the  college,  was 
conveyed  to  and  vested  in  the  corporate  body. ' 9  Acts  of 
the  legislature  of  the  state  of  New  Hampshire,  passed  on 
27th  June,  and  18th  December,  1816,  increased  "the 
number  of  trustees  to  twenty-one,"  gave  "the  appoint- 
ment of  the  additional  number  to  the  executive  of  the 
state,"  and  created  "a  board  of  overseers,  to  consist  of 
twenty-five  persons,  of  whom  twenty-one  are  also  ap- 
pointed by  the  executive  of  New  Hampshire,"  with 
"power  to  inspect  and  control  the  most  important  acts 
of  the  trustees. ' '  Prior  to  the  enactment  of  these  statutes, 
one  Woodward  was  the  secretary  and  treasurer  of  the 
corporation,  and,  as  such,  he  had  in  his  possession  the 
charter,  corporate  seal,  records,  and  certain  chattels 
belonging  to  the  corporation ;  in  1816  the  trustees  removed 
him  from  office ;  in  1817  he  was  appointed  secretary  and 
treasurer  of  the  new  board  of  trustees,  which  was  organ- 
ized under  the  statutes  of  1816,  and,  as  he  refused  to 
surrender  to  the  original  corporation  the  property  which 
was  in  his  hands,  that  corporation  brought  an  action  of 
trover  in  a  court  of  the  state  of  New  Hampshire  against 
him,  in  which  the  facts  as  stated  having  been  found  by  a 
12 


172  IMPAIRMENT   OF    CONTKACTS. 

special  verdict,  judgment  was  entered  in  favour  of  the 
defendant  by  the  state  court  of  last  resort,  and  the  cause 
was  removed  by  writ  of  error  to  the  Supreme  Court  of 
the  United  States,  which  reversed  the  judgment  of  the 
state  court,  the  ground  of  decision  being  that  the  college 
as  incorporated  was  a  private  eleemosynary  corporation ; 
that  its  charter,  in  terms,  and  by  force  of  the  donations  of 
funds  made  on  the  faith  of  it,  constituted  a  contract  be- 
tween the  colonial  government  and  the  corporation  as  the 
representative  of  the  donors  of  those  funds;  that  it  was 
an  implied,  but  essential,  condition  of  that  contract  that 
that  charter  should  not  be  so  modified,  without  the  consent 
of  the  corporation,  as  to  substitute  governmental  control 
for  the  will  of  the  donors;  that,  by  the  revolution,  the 
duties,  as  well  as  the  powers,  of  government  devolved  on 
the  people  of  New  Hampshire,  and  the  obligations  im- 
posed by  the  charter  were  the  same  under  the  state  govern- 
ment as  they  had  formerly  been  under  the  colonial 
government ;  and  that  the  effect  of  the  statutes  of  1816  was 
to  substitute  the  will  of  the  state  for  the  will  of  the  donors, 
and,  to  that  extent,  to  impair  the  obligation  of  the  contract 
between  the  state  and  the  corporation,  as  made  by  the 
charter.  Marshall,  C.  J.,  in  his  judgment,60  after  accept- 
ing the  suggestion,  that  "  taken  in  its  broad,  unlimited 
sense,  the  clause  would  be  an  unprofitable  and  vexatious 
interference  with  the  internal  concerns  of  a  state,  would 
unnecessarily  and  unwisely  embarrass  its  legislation,  and 
render  immutable  those  civil  institutions,  which  were 
established  for  purposes  of  internal  government,  and 
which,  to  subserve  those  purposes,  ought  to  vary  with 
varying  circumstances ;' '  and  "that  as  the  framers  of  the 
Constitution  could  never  have  intended  to  insert  in  that 
instrument  a  provision  so  unnecessary,  so  mischievous, 

60  4  Wheat,  pp.  628,  629. 


IMPLIED   EXEMPTION    FROM   TAXATION. 


173 


and  so  repugnant  to  its  general  spirit,  the  term  ' contract' 
must  be  understood  in  a  more  limited  sense, "  expressly 
conceded,  that  "the  framers  of  the  Constitution  did  not 
intend  to  restrain  the  states  in  the  regulation  of  their 
civil  institutions,  adopted  for  internal  government,  and 
that  the  instrument  they  have  given  us  is  not  to  be  so 
construed, "  and  that  "the  provision  of  the  Constitution 
never  has  been  understood  to  embrace  other  contracts, 
than  those  which  respect  property,  or  some  object  of 
value,  and  confer  rights  which  may  be  asserted  in  a 
court  of  justice, "  put  his  judgment  on  the  ground  that 
the  charter  of  the  college  constituted  a  contract  as  here- 
inbefore stated.  Applying  to  the  Dartmouth  College 
Case,  the  test  so  clearly  stated  by  Marshall,  C.  J.,  in 
Ogden  v.  Saunders,61  that  "the  positive  authority  of  a 
decision  is  co-extensive  with  the  facts  on  which  it  is 
made,"  it  is  obvious  that  the  case  is  an  authority  for 
the  proposition,  that  the  grant  by  a  state  of  a  charter 
of  incorporation  for  private  purposes  unconnected  with 
the  administration  of  government  constitutes  a  contract 
between  the  state  and  the  corporation,  whose  obligation 
is  not  to  be  permitted  to  be  impaired  by  a  material 
modification  of  the  terms  of  the  charter,  either  expressed 
or  implied,  and  that,  in  every  such  charter  it  is  an  implied 
condition  of  the  contract,  that  the  state  shall  not  by 
subsequent  legislation  change  either  the  purpose  of  the 
corporation,  or  its  system  of  administration. 

Implied  corporate  exemption  from  taxation. 

71.  The  later  cases  have  narrowed  the  doctrine  of  the 
Dartmouth  College  case  with  regard  to  the  implied  con- 
tracts created  by  charters,  and  thereby  made  obligatory 
on  the  states  granting  them.  In  Providence  Bank  v. 

81 12  Wheat.  333. 


174  IMPAIRMENT   OF    CONTRACTS. 

Billings,62  it  was  decided,  in  1830,  that  the  grant  of 
corporate  privileges  does  not  carry  with  it  any  implied 
exemption  of  either  the  corporate  franchise,  or  property, 
from  state  taxation,  and  this  principle  has  been  re-as- 
serted in  the  later  cases  of  M.  G.  Co.  v.  Shelby  County,63 
N.  M.  R.  v.  Maguire,64  Bailey  v.  Maguire,65  and  Tucker 
v.  Ferguson.66  Following  in  the  same  line,  it  has  been 
held  that  the  imposition  in  a  charter  of  a  specific  form  or 
rate  of  taxation  is  not  to  be  construed  in  the  absence  of 
an  express  contract  of  exemption  from  other  taxation  to 
constitute  an  implied  exemption  from  such  other  taxa- 
tion ; 67  and  that  the  grant  to  a  corporation  of  the  right  to 
sell  its  franchises  does  not  entitle  the  vendee  to  exemptions 
from  taxation  granted  to  the  vendor.68 

Implied  grants  of  peculiar  privileges. 

72.  On  the  same  principle,  it  has  been  held  that  legisla- 
tive grants  of  special  or  exclusive  privileges  are,  in  the 
interests  of  the  public,  to  be  strictly  construed,  and  do  not 
vest  in  the  grantee  any  powers  other  than  those  expressly 
granted.69  Thus,  the  charter  of  a  corporation  by  a  state 

62  4  Pet.  514. 
63 109  U.  S.  398. 
84  20  Wall.  46. 

65  22  Wall.  215. 

66  22  Wall.  527. 

67  License  Tax  Cases,  5  WaU.  462;  Delaware  E.  Tax,  18  id.  206;   Erie 
By.  v.  Pennsylvania,  21  id.  492;  Home  Ins.  Co.  v.  Augusta,  93  U.  S.  116; 
S.  C.  S.  Ey.  v.  Sioux  City,  138  id.  98;  N.  O.  C.  &  L.  E.  v.  New  Orleans, 
143  id.  192;  W.  &  W.  E.  v.  Alsbrook,  146  id.  279;  Shelby  Co.  v.  Union  & 
Planters'  Bank,  161  id.  149;  New  Orleans  v.  Citizens'  Bank,  167  id.  371. 

"People  v.  Cook,  148  U.  S.  397;  Picard  v.  East  T.,  V.  &  G.  E.,  130  id. 
637;  K.  &  W.  E.  v.  Missouri,  152  id.  301;  N.  C.  Ey.  v.  Maryland,  187  id. 
258.  See  also  Shields  v.  Ohio,  95  id.  319;  St.  L.  &  S.  F.  Ey.  v.  Gill,  156  id. 
649;  N.  &  W.  E.  v.  Pendleton,  ibid.  667;  P.  F.  &  M.  I.  Co.  v.  Tennessee, 
161  id.  174;  Memphis  City  Bank  v.  Tennessee,  ibid.  186;  P.  I.  Co.  v.  Ten- 
nessee, ifeid.  193;  C.  &  L.  T.  E.  Co.  v.  Sandford,  164  id.  578;  G.  E.  &  I. 
Ey.  v.  Osborn,  193  id.  17. 

MEice  v.  E.  Co.,  1  Bl.  358;   Charles  Eiver  Bridge  v.  Warren  Bridge, 


IMPLIED   GRANTS    OF   PECULIAR   PRIVILEGES.  175 

does  not  constitute  a  contract  by  the  state,  either  with  the 
corporation  or  with  the  creditors  thereof,  that  the  cor- 
poration shall  not  subsequently  be  dissolved  after  due 
legal  proceedings  founded  upon  a  forfeiture  of  the  cor- 
porate franchises  either  for  misuser  or  for  non-user.70 
So,  also,  the  creation  of  a  corporation  with  the  power  to 
erect  a  toll  bridge,  or  to  operate  a  ferry,  does  not  impliedly 
bind  the  state  not  to  license  the  establishment  of  a  com- 
peting bridge  or  ferry,  either  toll  or  free.71  The  grant  to 
a  contractor  of  the  sole  privilege  of  supplying  a  munici- 
pality with  water  from  a  designated  source  is  not  im- 
paired by  the  grant  to  another  party  of  the  privilege  of 
supplying  it  with  water  from  another  source ; 72  and  a 
municipality  which  has  granted  to  a  company  the  right  to 
erect  and  operate  an  electric  lighting  plant  does  not 
impair  the  obligation  of  the  contract  by  erecting  a  plant 
for  itself.73  Nor  does  the  grant  to  a  quasi-public  cor- 
poration of  the  right  to  sell  its  franchises  by  implication 
extend  to  the  vendee  any  exemption  from  rate  regulation 
which  was  possessed  by  its  vendor ; 74  nor  may  a  vendee 

11  Pet.  544;  Mills  v.  St.  Glair  County,  8  How.  581;  Perrine  v.  C.  &  D.  C. 
Co.,  9  id.  172;  E.  &  P.  E.  v.  L.  E.,  13  id.  81;  O.  L.  I.  &  T.  Co.  v.  Debolt, 
16  id.  416;  Jefferson  Branch  Bank  v.  Skelly,  1  Bl.  436;  The  Binghamton 
Bridge,  3  Wall.  51,  75;  G.  E.  &  B.  Co.  v.  Smith,  128  TJ.  S.  174;  Stein  v. 
B.  W.  S.  Co.,  141  id.  67;  H.  G.  L.  Co.  v.  Hamilton  City,  146  id.  258; 
M.  &  St.  L.  Ey.  v.  Gardner,  177  id.  332;  L.  &  N.  E.  v.  Kentucky, 
183  id.  503;  Joplin  v.  S.  M.  L.  Co.,  191  id.  150;  Stanislaus  County  v. 
S.  J.  &  K.  E.  C.  &  I.  Co.,  192  id.  201;  Shaw  v.  Covington,  194  id.  593. 
See  also  Owensboro  v.  O.  W.  S.  Co.,  191  id.  358. 

70Mumma  v.  The  Potomac  Co.,  8  Pet.  281,  286;  C.  L.  I.  Co.  v.  Needles, 
113  TJ.  S.  574,  584. 

"Fanning  v.  Gregoire,  16  How.  524;  Turnpike  Co.  v.  State,  3  Wall.  210; 
Wright  v.  Nagle,  101  TJ.  S.  791;  W.  &  B.  Bridge  Co.  v.  W.  B.  Co.,  138  id. 
287;  Williams  v.  Wingo,  177  id.  601. 

72  Stein  v.  B.  W.  S.  Co.,  141  U.  S.  67. 

78  Joplin  v.  S.  M.  L.  Co.,  191  U.  S.  150.  See  also  N.  W.  Co.  v.  Newbury- 
port,  193  id.  561. 

74  Shields  v.  Ohio,  95  U.  S.  319;  St.  L.  &  S.  F.  Ey.  v.  Gill,  156  id.  649; 
N.  &  W.  E.  v.  Pendleton,  ibid.  667;  C.  &  L.  T.  E.  Co.  v.  Sandford,  164 
id.  578 ;  G.  E.  &  I.  Ey.  v.  Osborn,  193  id.  17. 


176  IMPAIRMENT    OF    CONTRACTS. 

which  is  exempt  from  such  regulation  claim  exemption  as 
to  property  which  it  acquires  from  a  company  which  was 
not  exempt.75 

Exemption  from  the  operation  of  the  police  power. 

73.  There  is  no  implied  contract  in  a  charter  that  the 
state  will  exempt  the  corporate  franchises  and  property 
from  the  operation  of  such  legislation  as  the  state  may 
deem  necessary  to  secure  the  welfare  of  its  citizens.76  The 
granting,  therefore,  of  a  charter  to  an  insurance  company 
does  not  invalidate  a  subsequent  statute  which  requires 
that  company  to  make  a  full  return  showing  its  business 
condition  to  the  proper  officers  of  the  state.77  Nor  can  a 
state  surrender  by  implication  the  right  to  regulate  by 
subsequent  legislation  the  location  of  railway  stations  and 
the  stoppage  of  trains  at  those  stations ; 78  nor  to  require 
by  such  legislation  the  fencing  of  all  tracks  used  by  rail- 
way companies  within  the  state.79  Nor  can  a  state  by 
implication  exempt  a  railway  company  from  liability  in 

75  P.  G.  &  C.  Co.  v.  Chicago,  194  U.  S.  1. 

76  C.,  B.  &  Q.  E.  v.  Iowa,  94  U.  S.  155;  Peik  v.  C.  &  N.  W.  Ey.,  ibid. 
164;   W.  &  St.  P.  E.  v.  Blake,  ibid.  180;   Boyd  v.  Alabama,  ibid.  645; 
Beer  Co.  v.  Massachusetts,  97  id.  25;  Fertilizing  Co.  v.  Hyde  Park,  ibid. 
659;   Euggles  v.  Illinois,   108  id.  526;    Stone  v.  F.  L.   &  T.   Co.,   116  id. 
307;  G.  E.  &  B.  Co.  v.  Smith,  128  id.  174;  P.  E.  v.  Miller,  132  id.  75;  C.,  M. 
&  St.  P.  Ey.  v.  Minnesota,  134  id.  418;  W.  &  B.  Bridge  Co.  v.  W.  Bridge 
Co.,  138  id.  287;   New  York  v.  Squire,  145  id.  175;  M.  &  St.  L.  Ey.  v. 
Emmons,   149   id.   364;    E.   I.   Co.  v.   Ohio,   153   id.   446;    N.   &  W.  E.   v. 
Pendleton,  156  id.  667;  Pearsall  v.  G.  N.  Ey.,  161  id.  646;  L.  &  N.  E. 
v.  Kentucky,  ibid.  677;  St.  L.  &  S.  F.  Ey.  v.  Mathews,  165  id.  1;  C.,  B.  &. 
Q.  E.  v.  Chicago,  166  id.  226;  L.  I.  W.  Co.  v.  Brooklyn,  ibid.  685;  W.  E. 
v.  Defiance,  167  id.  88;  C.,  B.  &  Q.  E.  v.  Nebraska,  170  id.  57;  A.  Ey.  v. 
New  York,  176  id.  335;  F.  W.  Co.  v.  Freeport,  180  id.  587;  K.  I.  Co.  v. 
Harbison,  183  id.  13;  L.  &  N.  E.  v.  Kentucky,  ibid.  503;  Stanislaus  County 
v.  S.  J.  &  K.  E.  C.  &  I.  Co.,  192  id.  201;  cf.  N.  Y.,  L.  E.  &  W.  E.  v. 
Pennsylvania,  153  id.  628;  C.  M.  L.  I.  Co.  v.  Spratley,  172  id.  602. 

77  E.  I.  Co.  v.  Ohio,  153  U.  S.  446. 

78  E.  Co.  v.  Hamersley,  104  U.  S.  1. 

79  M.  &  St.  L.  Ey.  v.  Emmons,  149  U.  S.  364. 


EXEMPTION    FROM   POLICE   POWER.  177 

damages  for  fires  caused  by  its  locomotives,80  or  for  injury 
to  property  in  the  construction  of  its  road.81  On  the  same 
principle,  the  grant  of  a  franchise  to  a  railway  does  not 
preclude  a  municipality  from  making  reasonable  regula- 
tions as  to  the  use  of  its  streets.82  A  state  which,  by 
charter,  has  authorized  a  railroad  to  consolidate  with 
other  roads,  may  forbid  its  future  consolidation  with  com- 
peting roads.83  A  state  may  place  reasonable  limitations 
upon  the  rates  of  fare  and  freight  charged  by  its  rail- 
ways.84 It  may,  in  the  case  of  a  railway  whose  charter 
authorizes  the  company  from  time  to  time  to  fix,  regulate 
and  receive  tolls  and  charges,  vest  in  a  commission  by  a 
subsequent  statute  the  power  of  fixing  those  rates.85  It 
may  by  statute  regulate  the  rates  of  a  water  corporation 
whose  charter  vested  the  power  of  fixing  the  rates  in  a 
board  of  commissioners,  some  of  whom  were  appointed 
by  the  company.86  And  it  has  been  said  that  where  a 
water  company  was  organized  under  a  statute  which  pro- 
vided that  the  commissioners  should  not  reduce  the  rates 
below  a  given  point,  the  state  may  by  subsequent  statute 
authorize  the  commissioners  to  reduce  the  rates  below  that 

80  St.  L.  &  S.  P.  Ey.  v.  Mathews,  165  U.  S.  1. 

81  P.  E.  v.  Miller,  132  U.  S.  75. 

82  Baltimore  v.  B.  T.  Co.,  166  U.  S.  673;  W.  E.  v.  Defiance,  167  id.  88. 
See  also  C.,  B.  &  Q.  E.  v.  Nebraska,  170  id.  57;  L.  G.  L.  Co.  v.  Murphy, 
ibid.  78. 

83  Pearsall  v.  G.  N.  Ey.,  161  U.  S.  646. 

84  C.,  B.  &  Q.  E.  v.  Iowa,  94  U.  S.   155;   Euggles  v.   Illinois,   108  id. 
526;  G.  E.  &  B.  Co.  v.  Smith,  128  id.  174;  M.  E.  Ey.  v.  Minnesota,  134 
id.  467;   L.  &  N.  E.  v.  Kentucky,  183  id.  503.     In  Eeagan  v.  F.  L.  & 
T.   Co.,   154  id.   362,   393,  after  admitting  that   a  state  has  the   general 
power  to  regulate  rates,  the  court  suggested,  but  did  not  decide,  that  there 
might  be  an  implied  grant  to  the  railway  of  the  right  to  reasonable  tolls. 

85  Stone  v.  F.  L.  &  T.  Co.,  116  U.  S.  307;  Stone  v.  I.  C.  E.,  ibid.  347; 
C.,  M.  &  St.  P.  Ey.  v.  Minnesota,  134  id.  418.     See  also  Owensboro  v.  O. 
W.  Co.,  191  id.  358. 

88  S.  V.  W.  W.  v.  Schottler,  110  U.  S.  347;  cf.  F.  W.  Co.  v.  Freeport, 
180  id.  587. 


178  IMPAIEMENT   OF    CONTRACTS. 

point.87  Indeed,  while  a  state  may,  by  an  express  agree- 
ment,88 bind  itself  not  to  regulate  the  rates  charged  by 
a  quasi-public  corporation,  such  as  a  water-supply89  or 
street  railway90  company,  a  state  cannot,  even  by  an 
express  contract,  bargain  away  its  right  to  enact  such 
legislation  as  may  be  necessary  to  secure  the  safety  or  to 
protect  the  health  or  the  morals  of  its  citizens.  It  may 
amend  statutes  which  regulate  the  construction  of  rail- 
roads within  its  limits.91  It  may  forbid  the  continued 
prosecution  of  their  respective  trades  by  corporations 
chartered  by  it  for  the  purpose  of  rendering  dead  animals 
into  fertilizers,92  or  manufacturing  and  selling  liquors,93 
or  selling  lottery  tickets  and  drawing  lotteries.94  And, 
upon  this  principle,  it  has  also  been  held  that  a  state  may, 
in  derogation  of  a  previous  grant  of  the  exclusive  privi- 
lege of  slaughtering  cattle,  authorize  others  to  conduct  the 
same  business.95 

Contracts  as  to  matters  of  public  concern. 

74.  In  Dartmouth  College  v.  Woodward,96  Marshall, 
C.  J.,  conceded  that  "the  framers  of  the  Constitution  did 

87  Stanislaus  County  v.  S.  J.  &  K.  E.  C.  &  I.  Co.,  192  U.  S.  201.     In 
this  case,  however,  the  state  constitution  had  reserved  to  the  legislature 
the  power  to  amend  or  repeal  the  law  in  question. 

88  Even  an  express  grant  of  exemption  from  regulation  does  not  by  im- 
plication  extend  to   a  purchaser   from  the   grantee:    Shields  v.   Ohio,   95 
II.  S.  319;  St.  L.  &  S.  F.  Ey.  v.  Gill,  156  id.  649;  N.  &  W.  E.  v.  Pendle- 
ton,  ibid.  667;  C.  &  L.  T.  E.  Co.  v.  Sandford,  164  id.  578;   G.  E.  &  I. 
Ey.  v.  Osborn,  193  id.  17 ;  and  see  P.  G.  &  C.  Co.  v.  Chicago,  194  id.  1. 

89  Los  Angeles  v.  L.  A.  W.  Co.,  177  U.  S.  558 ;  cf.  K.  W.  Co.  v.  Knoxville, 
189  id.  434. 

80  Detroit  v.  D.  C.  S.  Ey.,  184  U.  S.  368 ;  Cleveland  v.  C.  C.  Ey.,  194  id. 
517;  Cleveland  v.  C.  E.  Ey.,  ibid.  538;  cf.  F.  W.  Co.  v.  Freeport,  180  id.  587; 
L.  &  N.  E.  v.  Kentucky,  183  id.  503,  518. 

81  C.,  B.  &  Q.  E.  v.  Nebraska,  170  U.  S.  57. 

82  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659. 
88  Beer  Co.  v.  Massachusetts,  97  U.  S.  25. 

84  Stone  v.  Mississippi,  101  U.  S.  814;  Douglas  v.  Kentucky,  168  id.  488. 
86 Butchers'  Union  v.  C.  C.  Co.,  Ill  U.  S.  746. 
86  4  Wheat.  629. 


CONTRACTS   AS    TO    MATTERS    OF    PUBLIC    CONCERN.      179 

not  intend  to  restrain  a  state  from  the  regulation  of  its 
civil  institutions  adopted  for  internal  government."  On 
this  principle,  there  can  be  no  implied  contract  on  the 
part  of  a  state  that  it  will  not  amend  its  constitution, 
in  so  far  as  that  constitution  deals  with  the  administration 
of  the  public  concerns  of  the  state.97  Nor  can  a  state 
legislature  bind  subsequent  legislatures  as  to  the  exercise 
of  the  powers  of  sovereignty  over  the  political  subdivi- 
sions of  the  state,  and  over  its  municipal  corporations  with 
regard  to  subject-matters  of  public  and  not  of  private 
interest,  as,  for  instance,  the  location  of  a  county  seat,98 
or  the  boundaries  of  its  municipalities,99  or  the  sale  of 
property  held  by  a  municipality  for  public  purposes,  such 
as  water  works,100  or  the  appropriation  under  state 
authority  of  municipal  obligations  by  their  holders  as  a 
set-off  against  municipal  claims  against  those  holders ; 1 
nor  does  the  appointment  by  the  state  of  a  public  officer 
for  a  fixed  term  for  a  stipulated  compensation  constitute  a 
contract  between  the  state  and  the  appointee  whose  obliga- 
tion is  impaired  by  either  the  reduction  of  his  compensa- 
tion or  his  removal  from  office,2  but  after  the  duties  have 
been  performed  by  the  appointee  of  a  municipal  corpora- 
tion during  the  term  of  his  office  there  is  a  contract  whose 
obligation  is  impaired  by  a  subsequent  statute  abolishing 
the  power  of  taxation  for  the  payment  of  his  compensa- 
tion.3 Of  course,  in  the  case  of  an  officer  appointed  under 
a  statute  which  in  terms  defines  the  tenure  of  the  office  to 


•7  Church  v.  Kelsey,  121  U.  S.  282. 
98  Newton  v.  Commissioners,  100  U.  S.  548. 
"IT.  S.  v.  Memphis,  97  U.  S.  284. 
100  New  Orleans  v.  Morris,  105  U.  S.  600. 

1  Amy  v.  Shelby  County,  114  U.  S.  387. 

2  Butler  v.  Pennsylvania,  10  How.  402 ;  cf.  Crenshaw  v.  U.  S.,  134  U.  S. 
99;  Pennie  v.  Eeis,  132  id.  464. 

8  Fisk  v.  Jefferson  Police  Jury,  116  U.  S.  131. 


180  IMPAIRMENT   OF    CONTRACTS. 

be  according  to  law,  a  subsequent  statute  removing  him 
is  not  an  impairment  of  the  contract.4 

The  withdrawal  by  a  state  of  its  consent  to  be  sued. 

75.  The  state's  consent  to  be  sued  being  voluntary  and 
of  grace,  that  consent  does  not  constitute  a  contract  whose 
obligation  can  be  impaired  by  a  subsequent  repeal  of  the 
statute  permitting  such  suit,5  especially  where  the  statute 
authorizing  the  suit  has  provided  no  means  for  the  en- 
forcement of  any  judgment  that  may  be  rendered  against 
the  state.  Under  such  circumstances  the  state  may,  by 
subsequent  legislation,  withdraw  its  consent  to  be  sued.6 
In  this  connection,  that  which  was  forcibly  said  by 
Mathews,  J.,  in  the  judgment  of  the  court  in  the  case  of 
In  re  Ayers,7  may  well  be  borne  in  mind.  The  learned 
judge  said : ' i  It  cannot  be  doubted  that  the  XI  Amendment 
to  the  Constitution  operates  to  create  an  important  dis- 
tinction between  contracts  of  a  state  with  individuals 
and  contracts  between  individual  parties.  In  the  case  of 
contracts  between  individuals,  the  remedies  for  their  en- 
forcement or  breach,  in  existence  at  the  time  they  were 
entered  into,  are  a  part  of  the  agreement  itself,  and  con- 
stitute a  substantial  part  of  its  obligation.8  That  obliga- 
tion .  .  .  cannot  be  impaired  by  any  subsequent  legisla- 
tion. Thus,  not  only  the  covenants  and  conditions  of  the 
contract  are  preserved,  but  also  the  substance  of  the 
original  remedies  for  its  enforcement.  It  is  different  with 
contracts  between  individuals  and  a  state.  In  respect  to 
these,  by  virtue  of  the  XI  Amendment  to  the  Constitution, 

4  Head  v.  University,  19  Wall.  526. 

5  Beers  v.  Arkansas,   20  How.  527;   Bank  of  Washington  v.  Arkansas, 
ibid.  530. 

6E.  Co.  v.   Tennessee,  101  U.   S.  337;   K.   Co.  v.  Alabama,  ibid.  832; 
Baltzer  v.  North  Carolina,  161  id.  240. 
7 123  U.  S.  504. 
8  Louisiana  v.  New  Orleans,  102  U.  S.  203. 


PROHIBITION   AS   CONSTRUED   BY   SUPREME    COURT.      181 

there  being  no  remedy  by  a  suit  against  the  state,  the  con- 
tract is  substantially  without  sanction,  except  that  which 
arises  out  of  the  honour  and  good  faith  of  the  state  itself, 
and  these  are  not  subject  to  coercion.  Although  the  state* 
may,  at  the  inception  of  the  contract,  have  consented  as 
one  of  its  conditions  to  subject  itself  to  suit,  it  may  subse- 
quently withdraw  that  consent  and  resume  its  original 
immunity,  without  any  violation  of  the  obligation  of  its 
contract  in  the  constitutional  sense. ' ' 9  Yet,  as  was 
pointed  out  by  Bradley,  J.,  in  Hans  v.  Louisiana,10  "  where 
property  or  rights  are  enjoyed  under  a  grant  or  contract 
made  by  a  state,  they  cannot  wantonly  be  invaded.  Whilst 
the  state  cannot  be  compelled  by  suit  to  perform  its  con- 
tracts, any  attempt  on  its  part  to  violate  property  or  )( 
rights  acquired  under  its  contracts  may  be  judicially  re- 
sisted ;  and  any  law  impairing  the  obligation  of  contracts 
under  which  such  property  or  rights  are  held  is  void  and 
powerless  to  affect  their  enjoyment." 

The  force  and  effect  of  the  prohibition  as  construed  by  the 
Supreme  Court. 

76.  The  force  and  effect  of  the  prohibition,  as  con- 
strued by  the  court,  is,  that  a  state  may  not,  by  any  law 
or  by  any  act  to  which  the  state,  by  its  enforcement 
thereof,  gives  the  force  of  a  law,  deprive  a  party  of  the 
legal  right  of  enforcing,  or  obtaining  compensation  for 
the  breach  of,  an  express  contract,  executed  or  executory, 
between  individuals,  or  between  a  state  and  individuals, 
but  a  state  may  regulate  or  limit  the  remedies  of  the  con- 
tracting parties,  provided  that  it  leaves  in  force  a  substan- 
tial part  of  the  legal  remedies  which  subsisted  at  the  time 
of  the  making  of  the  contract. 

"Beers  v.  Arkansas,  20  How.  527;  E.  Co.  v.  Tennessee,  101  U.  S.  337. 
10 134  U.  S.  1.     See  also  McGahey  v.  Virginia,  135  id.  662. 


CHAPTER  VI. 

EX  POST  FACTO  LAWS  AND  BILLS  OF  ATTAINDER. 

77.  The  constitutional  provisions. 

78.  The  distinction  between  retrospective  and  ex  post  facto  laws. 

79.  Ex  post  facto  laws  defined. 

80.  Illustrations  of  ex  post  facto  laws. 

81.  Illustrations  of  laws  which  are  not  ex  post  facto. 

82.  Bills  of  attainder  and  bills  of  pains  and  penalties. 

The  constitutional  provisions. 

77.  Section  10  of  Article  I  of  the  Constitution  declares 
that  "no  state  shall  .  .  .  pass  any  bill  of  attainder  or 
ex  post  facto  law. ' '     Section  9  of  Article  I  of  the  Constitu- 
tion, restricting  the  powers  of  Congress,  declares  that  "no 
bill  of  attainder  or  ex  post  facto  law  shall  be  passed." 

The  distinction  between  retrospective  and  ex  post  facto 
laws. 

78.  Ex  post  facto  laws  relate  to  criminal,  and  not  to 
civil,  procedure.1     They  are  necessarily  retrospective,  but 
all  retrospective  laws  are  not  ex  post  facto.2     State  laws 
which  operate  retrospectively,  or  which  divest  anteced- 
ently vested  rights  of  property,  are  not  prohibited  by  the 
Constitution  of  the  United  States,  if  they  are  not  ex  post 
facto  laws,  and  if  they  do  not  impair  the  obligation  of  con- 
tracts.3    A   state   legislature,   unless   restrained  by  the 

Balder  v.  Bull,  3  Dall.  386;  Watson  v.  Mercer,  8  Pet.  88,  110;  Car- 
penter v.  Pennsylvania,  17  How.  456;  League  v.  Texas,  184  U.  S.  156. 

2  Calder  v.  Bull,  3  DaU.  386. 

8  Calder  v.  Bull,  3  Dall.  386 ;  Fletcher  v.  Peck,  6  Cr.  138 ;  Ogden  v.  Saun- 
ders,  12  Wheat.  266;  Satterlee  v.  Matthewson,  2  Pet.  380;  Watson  v. 
Mercer,  8  Pet.  88,  110;  Carpenter  v.  Pennsylvania,  17  How.  456;  B.  & 
S.  E.  v.  Nesbit,  10  How.  395;  Livingston  v.  Moore,  7  Pet.  469;  League 
v.  Texas,  184  U.  S.  156. 

182 


RETKOSPECTIVE  AND  EX  POST  FACTO  LAWS.      183 

constitution  of  the  state,  may,  therefore,  enact  statutes 
setting  aside  a  decree  of  a  court  of  probate,  refusing  to 
allow  probate  of  a  will,  and  granting  a  rehearing  by  the 
court  of  probate  with  liberty  of  appeal  therefrom,  after 
the  time  limited  by  existing  laws  for  an  appeal  has 
passed ; 4  declaring  that  the  relation  of  landlord  and  ten- 
ant exists  between  parties  as  to  whom  the  courts  of 
the  state  have  decided  that  that  relation  does  not  exist ; 5 
curing  defective  acknowledgments  of  deeds  by  femes 
covert ; 6  construing  by  a  declaratory  statute,  after  the 
death  of  a  decedent,  existing  tax  laws  so  as  to  subject  to 
a  collateral  inheritance  tax  the  distributive  shares  of  non- 
resident distributees ; 7  directing  a  county  court  to  set 
aside  an  inquisition  condemning  certain  land  for  the  use 
of  a  railway  and  to  order  a  new  inquisition ; 8  directing 
the  imposition  of  a  tax  according  to  an  assessment  there- 
tofore made ; 9  authorizing  the  sale  of  lands  on  which  the 
state  has  a  lien  for  debts  due  to  it ; 10  and  establishing  new 
remedies  for  the  collection  of  taxes  already  delinquent.11 
Upon  the  same  principle,  Congress  having  passed  an  act 
for  the  admission  of  a  territory  as  a  state,  and  having  in 
that  act  omitted  to  provide  for  the  disposal  of  causes 
pending  in  the  Supreme  Court  of  the  United  States  on 
appeal  from  the  territorial  courts,  may  by  a  subsequent 
act  properly  make  provision  for  such  causes,  for  such 
legislation  is  remedial; 12  and  it  may  provide  for  a  review 
of  the  actions  of  a  commission  created  by  it,  by  a  transfer 

4  Colder  v.  Bull,  3  Ball.  386. 

5  Satterlee  v.  Matthewson,  2  Pet.  380. 

6  Watson  v.  Mercer,  8  Pet.  88. 

7  Carpenter  v.  Pennsylvania,  17  How.  456. 

8  B.  &  S.  E.  v.  Nesbit,  10  How.  395. 

9  Locke  v.  New  Orleans,  4  Wall.  172. 

10  Livingston  v.  Moore,  7  Pet.  469. 

11  League  v.  Texas,  184  U.  S.  156. 
"Freeborn  v.  Smith,  2  Wall.  160. 


184  EX  POST  FACTO  LAWS. 

of  its  proceedings  and  decisions  to  judicial  tribunals  for 
examination  and  determination  de  novo.13  So  also  Con- 
gress may  by  statute  impose  a  tax  retrospectively.14 

Ex  post  facto  laws  defined. 

79.  In  Fletcher  v.  Peck,15  Marshall,  C.  J.,  defines  an 
ex  post  facto  law  to  be  one  " which  renders  an  act  punish- 
able in  a  manner  in  which  it  was  not  punishable  when  it 
was  committed. "  In  Cummings  v.  Missouri,16  Field,  J., 
defines  an  ex  post  facto  law,  as  "one  which  imposes  a 
punishment  for  an  act  which  was  not  punishable  at  the 
time  it  was  committed ;  or  imposes  additional  punishment 
to  that  then  prescribed;  or  changes  the  rules  of  evidence 
by  which  less  or  different  testimony  is  sufficient  to  convict 
than  was  required."  In  Calder  v.  Bull,17  Chase,  J., 
classified  ex  post  facto  laws  as  follows:— "first,  those  that 
make  an  action,  done  before  the  passing  of  a  law,  and 
which  was  innocent  when  done,  criminal,  and  punish  such 
action;  second,  those  that  aggravate  a  crime,  or  make  it 
greater  than  it  was  when  committed;  third,  those  that 
change  the  punishment  and  inflict  greater  punishment 
than  the  law  annexed  to  the  crime  when  committed ;  and, 
fourth,  those  that  alter  the  legal  rules  of  evidence  and 
receive  less  or  different  testimony  to  convict  the  offender 
than  that  required  at  the  time  of  the  commission  of  the 
offense. ' '  That  classification  has  been  repeatedly  quoted 
with  approval.18 


13  Stephens  v.  Cherokee  Nation,  174  U.  S.  445. 

14  Stockdale  v.  I.  Cos.,  20  Wall.  323. 

15  6  Cr.  138. 

16  4  Wall.  325. 

17  3  Ball.  386. 

"Kring  v.  Missouri,  107  U.  S.  221;   Duncan  v.  Missouri,  152  id.  377; 
Gibson  v.  Mississippi,  162  id.  565;  Mallett  v.  North  Carolina,  181  id.  589. 


ILLUSTRATIONS  OF  EX  POST  FACTO  LAWS.       185 

Illustrations  of  ex  post  facto  laws. 

80.  Laws  have  been  held  to  be  ex  post  facto,  which, 
after  the  commission  of  an  act,  alter  the  situation  of  the 
accused  to  his  disadvantage,  as,  for  instance,  by  providing 
that  the  plea  of  autrefois  convict  should  not  at  a  second 
trial  be  a  defense  in  the  case  of  a  prisoner  convicted  of 
murder  in  the  second  degree  under  an  indictment  charging 
murder  in  the  first  degree,  the  law  having  been  at  the  time 
of  the  commission  of  the  crime  that  such  a  plea  was  a 
defense; 19  or  by  requiring  a  clergyman,20  or  a  lawyer,21 
as  a  condition  precedent  to  the  practice  of  his  profession, 
to  take  an  oath  that  he  has  not  done  an  act,  for  the  doing 
of  which,  when  done,  deprivation  of  office  was  not  a  legal 
penalty;  or  by  requiring  one  who  applies  to  a  court  to 
open  a  judgment  rendered  against  him  in  absentia,  to  take 
oath,  as  a  condition  precedent  to  his  obtaining  the  desired 
relief,  that  he  has  not  done  an  act  for  the  doing  of  which 
the  deprivation  of  the  right  to  sue  in  courts  of  justice  was 
not  by  law  antecedently  imposed  as  a  penalty ; 22  or  by 
adding  to  the  death  penalty  for  murders  already  com- 
mitted, the  withholding  from  the  convict  of  all  knowledge 
as  to  the  date  of  his  execution  and  the  keeping  of  him  in 
solitary  confinement  until  that  time ; 23  or  by  reducing 
from  twelve  to  eight  the  number  of  jurors  necessary  for 
the  trial  of  felonies  committed  before  the  enactment  of  the 
law.24  In  the  case  last  cited  it  was  pointed  out  that  while, 
as  a  general  rule,  the  accused  has  no  vested  rights  in 
particular  modes  of  procedure,  yet  he  cannot  be  deprived 
of  any  right  that  was  regarded,  at  the  time  of  the  adoption 

19  Kring  v.  Missouri,  107  U.  S.  221. 

20  Cummings  v.  Missouri,  4  Wall.  277. 

21  Ex  parte  Garland,  4  Wall.  333.      But  see  Hawker  v.  New  York,  170 
U.  S.  189. 

22  Pierce  v.  Carskadon,  16  Wall.  234. 
28  Medley,  Petitioner,  134  U.  S.  160. 
24  Thompson  v.  Utah,  170  U.  S.  343. 


186  EX  POST  FACTO  LAWS. 

of  the  Constitution,  as  vital  for  the  protection  of  life  and 
liberty,  and  which  he  enjoyed  at  the  time  of  the  commis- 
sion of  the  offense  charged  against  him.25  So  also,  Con- 
gress cannot  provide,  by  statute,  that  an  act,  which  is  not 
an  offense  against  the  law  at  the  time  of  its  doing,  may 
become  such  by  a  subsequent  independent  act  with  which 
it  has  no  necessary  connection;  as,  for  instance,  that 
subsequent  bankruptcy,  either  voluntary  or  involuntary, 
shall  render  criminal  and  punishable  by  imprisonment 
the  obtaining  of  goods  with  intent  to  defraud  at  any  time 
within  three  months  before  the  commission  of  the  act  of 
bankruptcy.26 

Illustrations  of  laws  which  are  not  ex  post  facto. 

81.  On  the  other  hand,  a  law  changing  the  venue  in  a 
criminal  case,  though  passed  subsequently  to  the  com- 
mission of  the  offense,  is  not  ex  post  facto; 27  nor  is  a  law 
open  to  that  objection,  which,  though  passed  after  the  com- 
mission of  an  offense,  requires  that  the  persons  selected 
for  jury  service  shall  possess  good  intelligence,  sound 
judgment  and  fair  character,28  or  which  enlarges  the  class 
of  persons  who  may  be  competent  to  testify  as  witnesses  at 
the  trial,  as,  for  instance,  by  repealing  a  statutory  prohi- 
bition of  the  admission  of  the  testimony  of  convicted 
felons,29  or  which  provides  that  "comparison  of  a  dis- 
puted writing  with  any  writing  proved  to  the  satisfaction 
of  the  judge  to  be  genuine,  shall  be  permitted  to  be  made 
by  witnesses,  and  such  writings  and  the  evidence  of  wit- 
nesses respecting  the  same  may  be  submitted  to  the  court 
and  jury  as  evidence  of  the  genuineness  or  otherwise  of  the 

25  p.  352. 

26  U.  S.  v.  Fox,  95  U.  S.  670. 

"Gut  v.  The  State,  9  Wall.  35;  Cook  v.  U.  S.,  138  U.  S.  157. 
28  Gibson  v.  Mississippi,  162  U.  S.  565. 
v.  Utah,  110  U.  S.  574. 


BILLS   OF   ATTAINDER.  187 

writing  in  dispute, ' ' 30  or  which  allows  to  the  prosecution 
an  appeal  from  the  superior  to  the  supreme  court  of  the 
state,31  or  which  lessens  the  number  of  judges  in  the 
appellate  court,32  or  which  limits  the  number  of  spec- 
tators at  executions  for  murder ; 33  nor  is  a  law  ex  post 
facto  which  denies  the  exercise  of  the  right  of  franchise  to 
bigamists,  or  polygamists,  for  "the  disfranchisement 
operates  upon  the  existing  state  and  condition  of  the 
person,  and  not  upon  a  past  offense ; ' ' 34  nor  is  a  law  un- 
constitutional which  prohibits  the  continuance  of  the 
practice  of  medicine  by  those  who  do  not  register  them- 
selves in  accordance  with  its  provisions,35  or  which  ex- 
cludes from  the  practice  of  medicine  those  who  have  been 
convicted  of  felonies  prior  to  its  enactment ; 36  nor  can 
constitutional  objection  be  raised  to  a  law  which  provides 
that  whoever  has  been  twice  convicted  of  crime  shall,  upon 
conviction  of  a  felony  committed  after  the  passage  of  the 
act,  be  deemed  to  be  an  habitual  criminal,  and  be  punished 
by  imprisonment  for  twenty-five  years.37  While  a  law 
which  endeavors  to  reach  acts  already  committed  and 
which  provides  a  like  punishment  for  the  same  act  in  the 
future  is  void  in  so  far  as  it  is  retrospective,  it  is,  however, 
valid  as  to  offenses  which  are  committed  after  its 
passage.38 

Bills  of  attainder  and  bills  of  pains  and  penalties. 

82.  A  bill  of  attainder  is  defined  by  Field,  J.,  in  Cum- 
mings  v.  Missouri,39  as  "a  legislative  act  which  inflicts 

30  Thompson  v.  Missouri,  171  U.  S.  380. 
31Mallett  v.  North  Carolina,  181  U.  S.  589. 

82  Duncan  v.  Missouri,  152  U.  S.  377. 

83  Holden  v.  Minnesota,  137  U.  S.  483. 
34  Murphy  v.  Eamsey,  114  U.  S.  15. 
85Beetz  v.  Michigan,  188  U.  S.  505. 

86  Hawker  v.  New  York,  170  U.  S.  189. 
3T  McDonald  v.  Massachusetts,  180  U.  S.  311. 
38  Jaehne  v.  New  York,  128  U.  S.  189. 
38  4  WaU.  323. 
13 


188  EX  POST  FACTO  LAWS. 

punishment  without  a  judicial  trial,"  and  he  adds,  "If  the 
punishment  be  less  than  death,  the  act  is  termed  a  bill  of 
pains  and  penalties.  Within  the  meaning  of  the  Constitu- 
tion, bills  of  attainder  include  bills  of  pains  and 
penalties. "  It  has  been  held  that  a  state  constitution 
requiring  clergymen,  as  a  condition  precedent  to  the  exer- 
cise of  their  profession,  to  take  oath  that  they  had  not 
committed  certain  designated  acts,  some  of  which  were 
at  the  time  offenses  subject  to  legal  penalties,  and  others 
of  which  were  innocent  acts,40  and  that  a  state  statute 
requiring  one  who  applied  to  a  court  to  open  a  judgment 
rendered  against  him  in  absentia,  to  take  oath  that  he  had 
not  committed  certain  designated  public  offenses,41  and 
that  an  act  of  Congress  requiring  a  lawyer,  as  a  condition 
precedent  to  the  exercise  of  his  profession,  to  take  an  oath 
that  he  had  not  voluntarily  borne  arms  against  the  United 
States,  etc.,  42  constituted  in  each  case  a  bill  of  pains  and 
penalties  and  was,  therefore,  subject  to  the  constitutional 
prohibition  against  bills  of  attainder,  inasmuch  as,  by 
legislative  action,  and  without  judicial  investigation,  the 
statute  imposed  a  punishment  for  an  act  done  before  the 
enactment  of  the  statute,  the  oath  being  offered  to  the 
party  incriminated  as  a  means  of  compelling  an  admission 
of  guilt. 

40  Cummings  v.  Missouri,  4  Wall.  277. 

41  Pierce  v.  Carskadon,  16  Wall.  234. 

42  Ex  parte  Garland,  4  Wall.  333. 


CHAPTER  VII. 

THE    PKOHIBITION    OF    STATE    BILLS    OF    CREDIT. 

83.  Bills  of  credit  defined. 

84.  What  are,  and  what  are  not,  bills  of  credit. 

Bills  of  credit  defined. 

83.  Section  10  of  Article  I  of  the  Constitution  declares 
that  "no  state  shall  .  .  .  emit  bills  of  credit. "    Bills  of 
credit  within  the  meaning  of  this  constitutional  provision 
are  promissory  notes  issued  by  a  state  government  on  its 
credit  "intended  to  circulate  throughout  the  community 
for  its  ordinary  purposes  as  money,"  and  redeemable  on 
demand,  or  at  a  day  certain  in  the  future.1 

What  are,  and  what  are  not,  bills  of  credit. 

84.  A  state,  therefore,  may  not  issue  interest-bearing 
certificates  in  denominations  "not  exceeding  $10,  nor  less 
than  50  cents  "  receivable  by  the  state  in  payment  of  taxes, 
and  of  debts  due  to  the  state,  and  payable  to  officers  of  the 
state  in  discharge  of  salaries  and  fees  of  office,  and  re- 
deemable by  the  state  under  an  arrangement  that  there 
shall  be  withdrawn  "annually  from  circulation  one-tenth 
part  of  the  certificates. ' ' 2     Nevertheless,  a  state  may  in- 
corporate a  bank,  of  which  that  state  shall  be  the  sole 
shareholder,  and  it  may  authorize  that  bank  to  issue  notes 
as  circulation,   without  contravening  the  constitutional 
prohibition,  the   distinction  being  that   such  notes   are 
issued,  not  on  the  credit  of  the  state,  but  on  the  credit  of 

1  Craig  v.  Missouri,  4  Pet.  411;  Byrne  v.  Missouri,  8  id.  40;  Briscoe  v. 
Bank  of  Kentucky,  11  id.  257. 

2  Craig  v.  Missouri,  4  Pet.  410 ;  Byrne  v.  Missouri,  8  id.  40. 

189 


190  PEOHIBITION    OF    STATE   BILLS   OF    CREDIT. 

the  capital  and  assets  of  the  bank.3  Coupons  of  state 
bonds,  though  negotiable  and  receivable  for  taxes  due  to 
the  state,4  and  warrants  drawn  in  payment  of  appropria- 
tions made  by  the  legislature,  payable  upon  presentation 
if  there  be  funds  in  the  treasury,  and  issued  to  individuals 
in  payment  of  debts  due  to  them,5  cannot  properly  be 
called  bills  of  credit,  for  they  are  not  intended  to  circulate 
as  money. 

•Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257;  Darrington  v.  The  Bank  of 
Alabama,  13  How.  12. 

*  Virginia  Coupons  Case,  114  U.  S.  269,  284. 
6  H.  &  T.  C.  E.  v.  Texas,  177  U.  S.  66,  89. 


v 


CHAPTER  VIII. 

STATE    COMPACTS. 
85.  What  compacts  are  permitted,  and  what  are  forbidden. 

What  compacts  are  permitted,  and  what  are  forbidden. 

85.  Section  10  of  Article  I  of  the  Constitution  declares 
that  "no  state  shall  enter  into  any  treaty,  alliance,  or 
confederation.  .  .  .  No  state  shall,  without  the  consent  of 
Congress,  .  .  .  enter  into  any  agreement  or  compact  with 
another  state."  This  constitutional  prohibition  forbids 
compacts  between  a  state  and  foreign  nations,  and  also 
compacts  between  states  of  the  United  States,  to  which 
the  assent  of  Congress  has  not  been  given.  It  is,  there- 
fore, decisive  against  the  validity  of  the  confederation 
entered  into  by  the  insurgent  states  in  1861.1  It  also 
forbids  a  governor  of  a  state  to  enter  into  an  agreement 
with  a  foreign  government  for  the  extradition  of  a 
prisoner.2  But  states  may,  with  the  consent  of  Congress, 
enter  into  agreements  touching  conflicting  boundaries,3 
and,  in  such  cases,  the  consent  of  Congress  does  not  neces- 
sarily have  to  be  given  by  congressional  legislation  ex- 
pressly assenting  to  each  of  the  stipulations  of  the 
agreement  between  the  states,  but  that  consent  may  be 
inferred  from  the  legislation  of  Congress  touching  the 

1  Williams  v.  Bruffy,  96  U.  S.  176 ;  Sprott  v.  U.  S.,  20  Wall.  459 ;  Ford  v. 
Surget,  97  U.  S.  594;  U.  S.  v.  Keehler,  9  Wall.  83. 

a  Holmes  v.  Jennison,  14  Pet.  540. 

8Ehode  Island  v.  Massachusetts,  12  Pet.  724;  Missouri  v.  Iowa,  7  How. 
660;  Florida  v.  Georgia,  17  id.  478;  Alabama  v.  Georgia,  23  id.  505;  Vir- 
ginia v.  West  Virginia,  11  Wall.  39;  Poole  v.  Fleeger,  11  Pet.  185. 

191 


192  STATE   COMPACTS. 

subject-matter  of  the  agreement.4  The  prohibition  of 
state  compacts  does  not  invalidate  agreements  entered 
into  before  the  adoption  of  the  Constitution.5 

4  Virginia  v.  West  Virginia,   11  Wall.  39;   Virginia  v.   Tennessee,  148 
U.  S.  503;  cf.  St.  L.  &  S.  F.  By.  v.  James,  161  id.  545,  562. 
6  Wharton  v.  Wise,  153  U.  S.  155. 


CHAPTEE  IX. 

FUGITIVES   FEOM    JUSTICE. 

86.  The  constitutional  provision. 

87.  The  concurrent  jurisdiction  of  the  federal  and  state  courts. 

The  constitutional  provision. 

86.  Section  2  of  Article  IV  of  the  Constitution  declares 
that ' '  a  person  charged  in  any  state  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice  and  be  found  in 
another  state,  shall  on  demand  of  the  executive  authority 
of  the  state  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  state  having  jurisdiction  of  the  crime." 
The  words  "treason,  felony,  or  other  crime,"  as  Taney, 
C.  J.,  said  in  Kentucky  v.  Dennison,1  "in  their  plain  and 
obvious  import,  as  well  as  in  their  legal  and  technical 
sense,  embrace  every  act  forbidden  and  made  punishable 
by  a  law  of  the  state.  The  word  'crime'  of  itself  includes 
every  offense,  from  the  highest  to  the  lowest  in  the  grade 
of  offenses,  and  includes  what  are  called  ' misdemeanors,' 
as  well  as  treason  and  felony. ' ' 2  This  constitutional  pro- 
vision imposes  on  the  executive  of  the  state  in  which  the 
fugitive  has  taken  refuge  the  duty  of  surrendering  the 
fugitive  upon  demand  made  by  the  executive  of  the  state 
from  which  the  fugitive  has  fled,  and  upon  proof  made 
that  he  has  been  legally  charged  with  crime,  and  this 
duty  has  been  recognized  by  the  act  of  Congress  of  12th 
February,  1793,3  but  if  the  governor  of  the  state  to  which 
the  fugitive  has  fled  refuses  to  deliver  him  up  to  justice, 

'24  How.  99. 

2  See  also  Ex  parte  Eeggel,  114  U.  S.  642. 

31  Stat.  302;  Eev.  Stat.,  sees.  5278,  5279. 

193 


194  FUGITIVES   FROM   JUSTICE. 

"  there  is  no  power  delegated  to  the  general  government, 
either  through  the  judicial  department  or  any  other  de- 
partment, to  use  any  coercive  means  to  compel  him."4 
The  Supreme  Court  of  the  United  States,  therefore,  will 
not  issue  a  mandamus  to  compel  the  performance  by  a 
governor  of  a  state  of  his  constitutional  duty  of  surrender- 
ing to  another  state  a  fugitive  from  the  justice  of  thai 
state.5  This  provision  of  the  Constitution  does  not  give 
to  the  person  extradited  any  constitutional  right  to  insist 
that  he  shall  not  be  tried  for  any  offense  other  than  that 
set  forth  in  the  requisition  papers  without  first  having  an 
opportunity  to  return  to  the  state  from  which  he  was 
extradited.6  And  a  fugitive  from  justice  who  has  been 
abducted  from  the  state  to  which  he  fled  may  thereafter 
be  tried  in  the  state  to  which  he  has  been  forcibly  carried, 
without  violating  any  right  or  immunity  secured  to  the 
accused  by  the  Constitution  of  the  United  States.7 

The  concurrent  jurisdiction  of  the  federal  and  state 
courts. 

87.  An  alleged  fugitive  from  justice  may  petition  a 
court  of  the  United  States  for  a  writ  of  habeas  corpus  to 
inquire  into  the  legality  of  his  detention,  but  as  the  re- 
sponsibility of  determining  whether  or  not  the  alleged 
fugitive  from  justice  be  in  fact  a  fugitive  from  justice, 
rests  upon  the  executive  of  the  state  to  which  the  fugitive 
has  fled,  a  court  of  the  United  States  will  not  discharge  the 
fugitive  upon  the  hearing  of  the  writ  of  habeas  corpus 
because,  in  its  judgment  the  proof  that  the  prisoner  is  a 
fugitive  from  justice  is,  though  satisfactory  to  the 

4  Per  Taney,  C.  J.,  in  Kentucky  v.  Dennison,  24  How.  109. 

5  Kentucky  v.  Dennison,  24  How.  66. 

"Lascelles  v.  Georgia,  148  U.  S.  537;  cf.  Cosgrove  v.  Winney,  174  id.  64. 
7Mahon  v.  Justice,  127  U.  S.  700. 


JURISDICTION    OF    FEDERAL   AND    STATE    COURTS.         195 

executive,  not  as  complete  as  might  have  been  required.8 
When,  however,  it  is  shown  conclusively  that  the  accused 
was  not  within  the  state  at  the  time  the  crime  was  com- 
mitted, he  will  be  discharged  upon  the  hearing  of  the 
writ.9  The  alleged  fugitive  may  also  apply,  by  petition 
for  a  writ  of  habeas  corpus,  to  a  court  of  the  state  within 
which  he  is  detained  in  custody  of  the  purpose  of  being 
delivered  to  the  justice  of  another  state,  for  the  jurisdic- 
tion of  the  courts  of  the  United  States  over  such  petitions 
for  writs  of  habeas  corpus  is  not  exclusive  of  the  jurisdic- 
tion of  the  courts  of  the  states  in  such  cases,  and  the  agent 
of  the  state  demanding  the  surrender  of  the  alleged 
fugitive  is  in  no  sense  an  officer  of  the  United  States,  nor 
otherwise  exempt  from  the  process  of  the  courts  of  the 
states.10 

*Ex  parte  Eeggel,  114  U.  S.  642;  Boberts  v.  Reilly,  116  id.  80;  Whitten 
v.  Tomlinson,  160  id.  231.  See  also  Cook  v.  Hart,  146  id.  183;  Pearce  v. 
Texas,  155  id.  311. 

•  Hyatt  v.  People,  188  U.  S.  691. 

10Eobb  v.  Connolly,  111  U.  S.  624. 


CHAPTER  X. 

THE  JUDICIAL  POWEE. 

88.  The  constitutional  provisions. 

89.  The  theory  of  a  judicial  system  under  the  common  law. 

90.  The  necessity  of  a  federal  judiciary. 

91.  Cases  in  law  and  equity,  etc. 

92.  Cases  affecting  ambassadors,  etc. 

93.  Admiralty. 

94.  Controversies  to  which  the  United  States  shall  be  a  party. 

95.  Controversies  between  citizens  of  different  states. 

96.  Controversies  between  two  or  more  states. 

97.  Controversies  between  a  state  and  citizens  of  another  state,  etc. 

98.  Federal  jurisdiction. 

99.  Exclusive  and  concurrent  jurisdiction. 

100.  The  courts  of  the  United  States. 

101.  Original  jurisdiction. 

102.  Appellate  and  supervisory  jurisdiction. 

103.  The  necessity  of  a  judicial  "case." 

104.  The  federal  judiciary. 

105.  The  federal  supremacy. 

106.  Constitutional  and  statutory  construction. 

107.  Judgments  of  courts. 

108.  Treaties. 

109.  The  law  administered  in  the  federal  courts. 

110.  Courts  martial  and  impeachments. 

111.  The  IV  Amendment. 

112.  The  V  Amendment — (a)  Due  process  of  law;   (5)  Jeopardy,  etc. 

113.  The  VI  Amendment. 

114.  The  VII  and  VIII  Amendments. 

115.  The  XI  Amendment. 

116.  The  relations  between  the  federal  and  state  courts. 

117.  The  XIV  Amendment  as  affecting  state  judicial  proceedings. 

118.  The  "full  faith  and  credit"  clause. 

The  constitutional  provisions. 

88.  Section  1  of  Article  III  declares,  that  "the  judicial 
power  of  the  United  States  shall  he  vested  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  judges,  hoth 
of  the  Supreme  and  inferior  courts,  shall  hold  their  offices 

196 


THE    CONSTITUTIONAL    PROVISIONS.  197 

during  good  behaviour,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office. ' '  Section  2 
declares  that  "the  judicial  power  shall  extend  to  all  cases, 
in  law  and  equity,  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority ;  to  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls;  to  all  cases  of 
admiralty  and  maritime  jurisdiction;  to  controversies  to 
which  the  United  States  shall  be  a  party ;  to  controversies 
between  two  or  more  states ;  between  a  state  and  citizens 
of  another  state ;  between  citizens  of  different  states ;  be- 
tween citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states,  and  between  a  state,  or  the  citi- 
zens thereof,  and  foreign  states,  citizens,  or  subjects.  In 
all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  and  those  in  which  a  state  shall  be  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all 
the  other  cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions,  and  under  such  regulations  as  the  Con- 
gress shall  make.  The  trial  of  all  crimes,  except  in  cases 
of  impeachment,  shall  be  by  jury ;  and  such  trial  shall  be 
held  in  the  state  where  the  said  crime  shall  have  been  com- 
mitted ;  but  when  not  committed  within  any  state,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by 
law  have  directed." 

Clause  2  of  Article  VI  declares  that  "this  Constitution 
and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof ;  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land ;  and  the  judges  in  every  state 
shall  be  bound  thereby,  anything  in  the  constitution  or  laws 
of  any  state  to  the  contrary  notwithstanding. " 

The  IV  Amendment  declares  that  "the  right  of  the  peo- 


198  THE    JUDICIAL    POWER. 

pie  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall 
not  be  violated,  and  no  warrants  shall  issue,  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched,  and  the  per- 
sons or  things  to  be  seized. ' ' 

The  V  Amendment  provides  that  "no  person  shall  be 
held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger ;  nor  shall  any  person  be  subject  for  the  same  of- 
fense to  be  twice  put  in  jeopardy  of  life  and  limb ;  nor  shall 
be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property,  with- 
out due  process  of  law ;  nor  shall  private  property  be  taken 
for  public  use,  without  just  compensation. " 

The  VI  Amendment  provides  that  "in  all  criminal  pros- 
ecutions, the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial,  by  an  impartial  jury  of  the  state  and  district 
wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law,  and 
to  be  informed  of  the  nature  and  cause  of  the  accusation ; 
to  be  confronted  with  the  witnesses  against  him;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favour, 
and  to  have  the  assistance  of  counsel  for  his  defense." 

The  VII  Amendment  provides  that  "in  suits  at  common 
law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and 
no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in 
any  court  of  the  United  States,  than  according  to  the  rules 
of  the  common  law. ' ' 

The  VIII  Amendment  provides  that  "excessive  bail 
shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted." 


JUDICIAL   SYSTEM    UNDER   THE    COMMON    LAW.  199 

The  XI  Amendment  provides  that  "the  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  state. ' ' 

The  theory  of  a  judicial  system  under  the  common  law. 

89.  Many  of  the  men  who,  as  members  of  the  Conven- 
tion of  1787,  participated  in  the  framing  of  the  Consti- 
tution were  lawyers,  who  had  been  trained  in,  and  had 
mastered,  the  principles  of  the  common  law.  When  the 
Convention  had  determined  that  there  should  be  a  judicial 
department  of  the  government  of  the  United  States,  those 
lawyers  naturally  found  in  the  common  law  the  principles 
of  administration  which  they  deemed  it  wise  to  adopt.  If 
they  had  been  asked  to  formulate  those  principles  they 
would  have  stated  them  substantially  as  follows : 

It  is  the  duty  of  every  civilized  government  to  pro- 
vide tribunals  for  the  punishment  of  crimes  and  for  the 
final  determination  of  private  controversies  between  indi- 
viduals. The  accusation  cannot  be  accepted  as  proof  of 
the  prisoner's  guilt,  nor  can  the  statement  of  a  claim  by 
one  individual  against  another  be  received  as  conclusive 
evidence  of  its  validity.  In  each  case  there  must  be  an 
inquiry  by  a  tribunal  before  whom  the  respective  parties 
can  appear,  to  whom  they  can  submit  the  evidence  and  the, 
arguments  on  which  they  respectively  rely,  and  who  shall 
authoritatively  decide  the  controversy. 

There  are  certain  requirements  of  justice  so  obviously 
true  that  they  do  not  need  to  be  vindicated  by  argument, 
and  so  essential  to  the  liberty  of  the  citizen  that  their 
presence  or  absence  is,  in  itself,  a  conclusive  test  of  the 
existence  of  free  institutions.  Those  requirements  are 
purity,  impartiality,  and  intelligence  of  administration, 
with  as  much  rapidity  of  operation  as  is  consistent  with 


200  THE    JUDICIAL    POWER. 

the  attainment  of  a  correct  result.  To  that  end  every  de- 
fendant who  is  accused  of  crime,  or  against  whom  a  claim 
is  attempted  to  be  enforced  by  civil  process,  is  entitled  to 
an  examination  by  an  independent  authority  to  determine, 
upon  a  prima  facie  presentation  of  the  case  and  of  the  evi- 
dence supporting  the  charge,  whether  there  should,  or 
should  not,  be  a  trial ;  to  due  notice  of  the  time  and  place  of 
trial;  to  information  of  the  precise  charge  against  him; 
to  a  reasonable  time  in  which  to  prepare  his  defense;  to 
be  confronted  with  the  witnesses  against  him ;  to  have  full 
opportunity  of  testing,  by  cross-examination,  the  testi- 
mony of  those  witnesses ;  to  have  compulsory  process  for 
the  production  of  witnesses  on  his  behalf ;  and  to  be  fully 
heard  in  his  defense,  at  his  option,  either  personally  or  by 
learned  counsel  of  his  own  selection. 

Every  civil  action  and  every  criminal  prosecution  in- 
volve two  questions :  first,  of  fact ;  did  the  defendant  do,  or 
not  do,  the  act  with  whose  commission  or  omission  he  is 
charged  1  Second,  of  law ;  is  that  act  forbidden,  and  if  so, 
what  is  the  nature  of  the  remedy  to  be  given  to  the  plain- 
tiff, or  the  punishment  to  be  inflicted  upon  the  defendant! 
It  is  clearly  not  necessary  that  these  two  questions  should 
be  determined  at  the  same  time,  nor  even  by  the  same  tri- 
bunal. On  the  contrary,  it  often  is  convenient  to  dispose 
of  the  question  of  law  in  the  first  instance.  The  defendant 
may  say  that,  admitting  for  the  sake  of  argument  the  fact 
that  is  charged  against  him,  it  yet  does  not  constitute  a 
subject  of  legal  action  against  him.  That  preliminary 
question  can  then  be  determined,  resulting,  if  in  favour 
of  the  defendant,  in  the  dismissal  of  the  proceedings  at 
that  point,  or,  if  adversely  to  him,  settling  the  law  as  ap- 
plicable to  the  facts,  if  they  be  found,  upon  subsequent  in- 
quiry, to  be  such  as  alleged  against  him.  It  is  also  clear 
that,  while  in  either  case  the  tribunal  ought  to  act  with 
integrity,  and  to  that  end  must  be  guarded  against  eorrup- 


JUDICIAL   SYSTEM    UNDER   THE    COMMON   LAW.  201 

tion  and  the  perturbing  pressure  of  extraneous  circum- 
stances and  undue  influence  brought  to  bear  on  behalf  of 
either  party,  yet,  as  the  question  is  of  the  one  class  or  the 
other,  different  qualifications  in  the  tribunal  will  be  of 
greater,  or  less,  importance  in  attaining  a  correct  result. 
If  the  question  be  one  of  law,  it  is  of  chief  importance  that 
the  tribunal  have  a  competent  knowledge  of  law,  and  pos- 
sess that  trained  judicial  discretion  which  will  enable  it  to 
correctly  construe  statutes,  and  to  estimate  the  relative 
weight  and  value  of  conflicting  authorities  and  precedents. 
If,  on  the  other  hand,  the  question  be  one  of  fact,  it  is  more 
important  that  the  tribunal  should  be  so  constituted  as  to 
bring  to  bear  upon  the  subject  that  experience  which  can 
only  be  gained  in  the  pursuits  of  active  life,  and  should 
take  as  nearly  possible  that  plain  common-sense  view  of 
the  matter  which  the  parties  to  the  controversy  would  be 
likely  to  take  if  they  were  not  biased  by  their  interest  in 
the  result.  It  is  certain  that,  as  an  aid  to  the  correct  deter- 
mination of  a  question  of  fact,  a  knowledge  of  law  is  of  no 
use,  except  in  so  far  as  the  study  of  the  law  as  a  science  has 
developed  the  mind  and  enlarged  its  powers,  but  any  ad- 
vantage from  that  source  is  more  than  counterbalanced  by 
the  tendency  of  studious  and  contemplative  minds  to  sub- 
stitute an  imaginary  world,  peopled  with  fictitious  beings 
and  animated  by  artificial  motives,  for  the  real  world  in 
which  we  live,  and,  by  the  influence  of  professional,  and 
especially  judicial,  training  in  the  application  of  technical 
rules  and  in  reasoning  by  analogy,  to  cause  an  undue  sub- 
ordination of  fact  to  theory.  This  tribunal,  as  I  have  in 
general  terms  described  it,  is  that  which  the  common  law, 
in  its  wisdom,  has  provided  in  its  system  of  trial  by  jury. 
Wherever  and  whenever  that  system  has  been  honestly 
and  intelligently  applied,  it  has  not  indeed  been  infallible 
in  its  determinations,  nor  has  it  achieved  ideal  justice,  for 
it  shares  in  that  imperfection  which  is  common  to  all  insti- 


202  THE    JUDICIAL   POWER. 

tutions  which  are  of  human  origin  and  operated  by  finite 
agencies,  but  it  has  in  the  vast  majority  of  cases  done  sub- 
stantial justice.  Wherever  and  whenever  that  system  has 
seemed  to  fail,  it  has  so  seemed  because  the  judge  has  not 
been  sufficiently  learned  and  able,  or  because  the  jury  has 
not  been  of  average  intelligence,  or  because  the  judge  has 
not  performed  his  proper  functions,  or  has  permitted  the 
jury  to  disregard  theirs. 

If  the  judge  who  presides  at  the  trial  be  intelligent,  cour- 
ageous, and  of  sufficient  decision  of  character,  he  will,  by 
the  application  of  the  rules  of  evidence,  prevent  the  minds 
of  the  jury  from  being  diverted  from  the  true  point  of  in- 
quiry, he  will  submit  questions  to  them  only  upon  adequate 
proof,  and  he  will,  in  his  charge,  put  clearly  and  unmis- 
takably before  them  the  precise  questions  of  fact  which  it 
is  their  province  to  determine,  and  by  his  instructions  upon 
the  law  of  the  case,  conveyed  in  clear  terms,  and  laid  down 
with  firmness  and  decision,  he  will  prevent  them  from 
being  swayed  by  extraneous  circumstances,  and  from  mis- 
apprehending either  the  question  in  the  case,  the  evidence 
relevant  to  it,  or  the  rules  of  law  controlling  their  decis- 
ion. On  the  other  hand,  a  judge,  however  honest  in  inten- 
tion, who  talks  and  does  not  listen,  who  yields  to  hasty  and 
ill-considered  views  of  the  testimony  of  witnesses,  who  an- 
ticipates the  arguments  of  counsel,  who  is  vacillating  and 
indecisive  in  his  determinations  upon  questions  of  evi- 
dence, or  who  either  does  not  take  clear  views  of  the  law 
applicable  to  the  case,  or  fails  to  impress  upon  the  jury, 
with  force  and  energy,  the  law  which  they  must  apply,  is  a 
serious  obstruction  to  the  administration  of  justice. 

So  also  is  it  essential  that  the  jurors  be  impartial,  biased 
neither  by  relation  to  the  parties,  by  interest  in  the  result 
of  the  contest,  nor  by  prejudice,  and  that  they  should  be 
of  at  least  average  intelligence.  There  is  no  magic  in  the 
jury  box  to  dissipate  the  mists  of  prejudice,  nor  to  convert 


THE   NECESSITY   OF   A   FEDERAL   JUDICIARY.  203 

ignorance  into  knowledge,  nor  stupidity  into  sense.  Men 
of  insufficient  intelligence  cannot  be  expected  to  decide  cor- 
rectly questions  of  fact,  either  simple  or  complicated. 

There  must  also  be  a  supervisory  body  to  determine 
whether  or  not  justice  requires  that  the  party  against 
whom  judgment  shall  have  been  given  should  have  a  new 
trial  upon  the  facts,  either  because  of  error  in  the  tribunal 
in  its  application  of  the  law,  or  in  its  admission  or  re- 
jection of  evidence,  or  in  deciding  against  the  weight  of 
the  evidence,  or  because  of  the  subsequent  discovery  of 
new  evidence  which,  if  produced  at  the  trial  and  if  be- 
lieved by  the  tribunal  of  the  first  instance,  ought,  in 
justice,  to  have  led  to  a  different  verdict. 

There  must  also  be  an  appellate  tribunal,  not  to  give  the 
unsuccessful  litigant  a  second  chance,  nor  to  retry  the  case 
upon  the  facts,  but  to  review  the  record  of  the  case  and  to 
set  aside  the  judgment,  if  in  its  entry  the  principles  of  jus- 
tice, or  the  rules  of  law,  have  been  violated ;  or  to  remit 
the  cause  to  the  lower  court  for  retrial,  if  that  court  shall 
be  found  to  have  erred  in  the  admission  or  rejection  of 
evidence,  or  if  the  evidence  for  the  prosecution,  taken  as  a 
whole,  and  assuming  its  truth,  and  drawing  all  the  infer- 
ences that  can  be  drawn  from  it,  is  legally  insufficient  to 
justify  the  judgment.  It  has  been  found  in  all  civilized 
countries  that  an  appellate  tribunal  is  essential  to  the 
maintenance  of  uniformity  in  the  administration  of  the 
law,  and  to  the  prevention  of  tyranny  and  caprice  in  the 
judges  of  the  courts  of  first  instance. 

The  necessity  of  a  federal  judiciary. 

90.  Having  regard  to  the  relation  between  the  United 
States  and  the  states,  and  bearing  in  mind  that  the  United 
States  cannot  impose  duties  upon  officers  of  the  states,  and 
compel  the  performance  by  those  officers  of  the  duties  so 

14 


204  THE    JUDICIAL   POWEK. 

imposed,1  it  is,  in  an  especial  degree,  essential  that  the 
United  States  should  have  the  power  of  establishing  courts 
of  civil  and  criminal  jurisdiction  for  the  punishment  of 
offenses  against  the  laws  of  the  United  States,  and  for  the 
protection  and  enforcement  of  rights  created  by  the  Con- 
stitution, laws,  and  treaties  of  the  United  States.  It  is 
also  necessary  to  the  enforcement  of  the  declared  su- 
premacy of  the  Constitution,  laws,  and  treaties  of  the 
United  States,  that  a  court  constituted  by  the  United 
States  with  jurisdiction  co-extensive  with  the  territory 
subject  to  the  Constitution,  should  be,  so  far  as  regards 
all  subjects  of  judicial  cognizance,  the  final  arbiter  by 
whom  the  construction  of  the  Constitution  of  the  United 
States  is  to  be  authoritatively  determined,2  for  otherwise 
the  Constitution  might  have  one  meaning  in  one  state,  and 
a  different  meaning  in  another  state,  and  it  might  be  con- 
strued in  one  way  in  one  court  and  in  another  way  in  an- 
other court,3  and  if  the  legislative,  executive,  and  judicial 
departments  of  the  several  states  were  at  liberty  to  con- 
clusively determine  for  themselves  the  construction  of  that 
instrument,  and  the  nature  and  the  extent  of  the  restraints 
upon  freedom  of  state  action  imposed  by  it,  those  re- 
straints would  bind  any  one  state  only  in  so  far  as  that 
state  might  choose  to  be  bound  at  any  particular  time,  and 
the  inevitable  result  would  be,  as  Marshall,  C.  J.,  said  in 
Cohens  v.  Virginia,4  to  prostrate  the  federal  "government 
and  its  laws  at  the  feet  of  every  state  in  the  Union. ' '  The 
framers  of  the  Constitution  also  deemed  it  necessary,  in 

1  Prigg  v.  Pennsylvania,  16  Pet.  539 ;  Kentucky  v.  Dennison,  24  How.  66. 

2  Cohens  v.  Virginia,  6  Wheat.  264 ;  Bank  of  Hamilton  v.  Dudley 's  Lessee, 
2  Pet.  492,  524;  Dodge  v.  Woolsey,  18  How.  331,  347;  Martin  v.  Hunter's 
Lessee,  1  Wheat.  304;   Missouri  v.  Andriano,  138  U.  S.  496;   Connolly  v. 
U.  S.  P.  Co.,  184  id.  540. 

8  Marbury  v.  Madison,  1  Cr.  137 ;  Van  Home 's  Lessee  v.  Dorrance,  2  Dall. 
304;  The  Mayor  v.  Cooper,  6  Wall.  247;  Norton  v.  Shelby  County,  118  U.  S. 
425. 

4  6  Wheat.  385. 


CASES   IN    LAW    AND   EQUITY,   ETC.  205 

order  to  guard  against  possible  prejudice  in  the  courts  of 
the  states  as  affecting  citizens  of  other  states,  when  liti- 
gants in  those  courts,  that  every  citizen  of  a  state  should, 
when  suing  a  citizen  of  another  state,  have  the  option  of 
bringing  his  action  in  the  federal  court  within  that  other 
state,  or  in  the  court  of  the  state,  as  might  seem  advisable 
to  him. 

The  Constitution  has,  therefore,  conferred  upon  the 
courts  of  the  United  States  jurisdiction  in  two  classes  of 
causes,  depending  in  the  one  class  on  the  character  of  the 
cause,  and  in  the  other  class  on  the  character  of  the 
parties.5 

Cases  in  law  and  equity,  etc. 

91.  "  Cases,  in  law  and  equity,  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority"  include  all 
subject-matters  of  litigation,  civil  or  criminal,  whose  de- 
termination requires  the  application  or  construction  of  the 
Constitution,  laws,  or  treaties  of  the  United  States.  A 
suit  brought  against  a  state  by  one  of  its  own  citizens  can- 
not be  maintained  under  this  provision  of  the  Consti- 
tution.6 As  Strong,  J.,  said,7 ' '  A  case  consists  of  the  right 
of  one  party,  as  well  as  of  the  other,  and  may  truly  be  said 
to  arise  under  the  Constitution,  or  a  law,  or  a  treaty  of 
the  United  States,  whenever  its  correct  decision  depends 
upon  the  construction  of  either.  Cases  arising  under  the 
laws  of  the  United  States  are  such  as  grow  out  of  the  legis- 
lation of  Congress,  whenever  they  constitute  the  right,  or 
privilege,  or  claim,  or  protection,  or  defense  of  the  party, 
in  whole  or  in  part,  by  whom  they  are  asserted. "  Fuller, 

5Chisholm  v.  Georgia,  2  Dall.  419,  475;  Cohens  v.  Virginia,  6  Wheat.  264, 
378 ;  Martin  v.  Hunter 's  Lessee,  1  Wheat.  304,  331,  343 ;  The  Moses  Taylor, 
4  Wall.  411,  429. 

6  Hans  v.  Louisiana,  134  IT.  S.  1. 

7  Tennessee  v.  Davis,  100  U.  S.  257,  264. 


206  THE   JUDICIAL.   POWER. 

C.  J.,  has  also  said  forcibly8  that  if  in  the  cause,  "it 
appears  that  some  title,  right,  privilege,  or  immunity  on 
which  the  recovery  depends  will  be  defeated  by  one  con- 
struction of  the  Constitution  or  a  law  of  the  United  States, 
or  sustained  by  the  opposite  construction,  then  the  case  is 
one  arising  under  the  Constitution  or  laws  of  the  United 
States/'9 

Cases  affecting  ambassadors,  etc. 

92.  "Cases  affecting  ambassadors,  other  public  minis- 
ters, and  consuls "  are  cases  to  which  such  officers  are 
parties,  or  so  far  privies,  that  the  determination  thereof 
will  conclude  their  rights.10 

Admiralty. 

93.  "Cases  of  admiralty  and  maritime  jurisdiction " 
comprehend  litigated  cases  with  regard  to  acts  done  and 

8  Cooke  v.  Avery,  147  U.  S.  375,  384. 

9  See  also  Cohens  v.  Virginia,  6  Wheat.  264,  379;  Osborn  v.  Bank  of  the 
U.  S.,  9  id.  738,  824;  The  Mayor  v.  Cooper,  6  WaU.  247,  252;  G.-W.  &  W. 
Co.  v.  Keyes,  96  U.  S.  199,  201 ;  E.  Co.  v.  Mississippi,  102  id.  135,  140 ;  Ames 
v.  Kansas,  111  id.  449,  462;  K.  P.  E.  v.  A.,  T.  &  S.  F.  E.,  112  id.  414,  416; 
Provident  Savings  Society  v.  Ford,  114  id.  635 ;  P.  E.  Eemoval  Cases,  115  id. 
1;  Metcalf  v.  Watertown,  128  id.  586;  Burthe  v.  Denis,  133  id.  514;  Bock  v. 
Perkins,  139  id.  628;  Mitchell  v.  Smale,  140  id.  406;  Cooke  v.  Avery,  147  id. 
375;  Belden  v.  Chase,  150  id.  674;  N.  P.  E.  v.  Colburn,  164  id.  383;  In  re 
Lennon,  166  id.  548;  A.  Ex.  Co.  v.  Michigan,  177  id.  404;  W.  U.  T.  Co.  v. 
A.  A.  E.,  178  id.  239;  Lampasas  v.  Bell,  180  id.  276;  Tullock  v.  Mulvane, 
184  id.  497 ;  Patton  v.  Brady,  ibid.  608 ;  Howard  v.  U.  S.,  ibid.  676 ;  V.  W. 
Co.  v.  Vicksburg,  185  id.  65;  Filhiol  v.  Maurice,  ibid.  108;  Talbot  v.  S.  C. 
First  Nat.  Bank,  ibid.  172 ;  Swafford  v.  Templeton,  ibid.  487 ;  Marsh  v.  N., 
S.  &  Co.,  140  id.  344;  Holt  v.  I.  Mfg.  Co.,  176  id.  68;  Arkansas  v.  K.  &  T.  C. 
Co.,  183  id.  185;  C.  C.  D.  Co.  v.  Ohio,  ibid.  238;  N.  F.  &  P.  W.  v.  O.  W.  S. 
Co.,  ibid.  216 ;  F.-G.  L.  S.  Co.  v.  Springer,  185  id.  47 ;  Kennard  v.  Nebraska, 
186  id.  304;  Sawyer  v.  Piper,  189  id.  154.     For  cases  affecting  officers  of 
the  United  States  see  In  re  Neagle,  135  U.  S.  1;  Sonnentheil  v.  M.  B.  Co., 
172  id.  401;  Bausman  v.  Dixon,  173  id.  113;  Auten  v.  U.  S.  Nat.  Bank,  174 
id.  125;  Boske  v.  Comingore,  177  id.  459;  Gableman  v.  P.,  D.  &  E.  Ey.,  179 
id.  335.     For  cases  affecting  corporations  created  by  the  United  States  see 
N.  P.  E.  v.  Amato,  144  Ul  S.  465;  T.  &  P.  Ey.  v.  Cody,  166  id.  606. 

10  U.  S.  v.  Ortega,  11  Wheat.  467 ;  Blyew  v.  U.  S.,  13  Wall.  581. 


ADMIEALTY.  207 

rights  created,  or  contracts  to  be  performed,  upon  the  high 
seas  or  inland  navigable  waters,  or  with  regard  to  con- 
tracts for  the  transportation  of  passengers  or  goods  on 
the  high  seas  or  on  navigable  waters  between  different 
states.  The  courts  of  the  United  States  have,  therefore, 
full  jurisdiction  in  admiralty,  and,  as  Bradley,  J.,  said,11 
"the  boundaries  and  limits  of  the  admiralty  and  maritime 
jurisdiction  are  matters  of  judicial  cognizance,  and  cannot 
be  affected  or  controlled  by  legislation,  whether  state  or 
national.12  But  within  these  boundaries  and  limits  the  law 
itself  is  that  which  has  always  been  received  as  maritime 
law  in  this  country,  with  such  amendments  and  modifica- 
tions as  Congress  may  from  time  to  time  have  adopted. " 

The  judicial  power,  being  defined  by  the  Constitution, 
cannot  be  extended  by  legislation  under  the  guise  of  a 
regulation  of  commerce,  for  the  legislative  regulation  of 
any  subject-matter  of  jurisdiction  is  in  its  nature  essen- 
tially distinct  from  the  creation  of  a  tribunal  and  the 
vesting  in  that  tribunal  of  jurisdiction  over  any  particular 
subject-matter.13  Congress  may  legislate  as  to  maritime 
torts,14  and  maritime  contracts.  Ships  navigating  the 
high  seas,  though  in  the  prosecution  of  commerce  between 
two  ports  of  the  same  state,  are  subject  to  the  federal 
power  of  regulation,  and  may  therefore  have  the  benefit 
of  the  limitation  of  liability  under  the  statutes  of  the 
United  States,15  and  the  limited  liability  statutes  now  ex- 
tend to  all  vessels  used  in  navigation  of  inland  waters.16 
While  states  cannot  create  maritime  liens,  nor  confer  juris- 
diction upon  their  courts  for  the  enforcement  of  such 

11  In  re  Garnett,  141  U.  S.  1,  14. 

12  The  St.  Lawrence,  1  Bl.  522,  6,  7;  The  Lottawanna,  21  Wall.  558,  575. 
33  The  Genesee  Chief  v.  Fitzhugh,  12  How.  443,  452. 

14  In  re  Garnett,  141  U.  S.  1 ;  Workman  v.  New  York,  179  id.  552. 

15  Eev.  Stat.  Sees.  4283  and  4289 ;  Lord  v.  G.  N.  &  P.  S.  S.  Co.,  102  U.  S. 
541. 

16  Act  of  19th  June,  1886;  24  Stat.  80,  81;  In  re  Garnett,  141  U.  S.  1. 


208  THE    JUDICIAL   POWER. 

liens,17  nor  authorize  their  courts  to  entertain  suits  for 
damages  for  the  breach  of  contracts  for  transportation  of 
passengers  on  the  high  seas,18  nor  proceedings  in  rem  in 
collision  cases  on  navigable  waters,10  yet,  as  the  general 
maritime  law  does  not  recognize  liens  in  favour  of  mate- 
rial men  for  supplies  furnished  to  vessels  in  their  home 
ports,  or  for  materials  sold  for  ships  in  process  of  con- 
struction, the  states  may  by  statute  authorize  liens  there- 
for, which  may  be  enforced  by  proceedings  in  rem  in  the 
admiralty  courts  of  the  United  States.20  On  the  same 
principle,  as  both  at  common  law  and  in  admiralty  the 
right  of  action  for  a  tort  is  personal  and  dies  with  the  per- 
son injured,  and  no  action  is  maintainable  therefor,21  the 
right  of  action  in  such  cases  when  conferred  by  a  state 
statute  is  enforcible  in  a  state  court  in  a  case  of  death 
caused  by  collision  in  navigable  waters  which  are  within 
the  jurisdiction  of  the  state,  and  it  is  also  enforcible  when 
the  navigable  waters  are  also  within  the  admiralty  juris- 
diction of  the  United  States22  in  the  courts  of  the 
United  States  on  the  admiralty  side,23  and  also  on 
the  law  side.24  In  England  navigable  waters  are,  in  law, 
only  those  in  which  the  tide  ebbs  and  flows;  and,  in 
that  country,  the  admiralty  jurisdiction  is  further  re- 
stricted by  the  requirement  that  the  locus  in  quo,  though 
within  the  ebb  and  flow  of  the  tide,  should  not  be  infra 
corpus  comitatus  nor  at  sea  infra  fauces  terra.  In  certain 

17  The  Belfast,  7  Wall.  624;  Moran  v.  Sturges,  154  U.  S.  256;  The  Eoanoke, 
189  id.  185;  The  E.  W.  Parsons,  191  id.  17. 

18  The  Moses  Taylor,  4  Wall.  411. 

19  The  Hine  v.  Trevor,  4  Wall.  555. 

20  Edwards  v.  Elliott,  21  Wall.  532;  The  Lottawanna,  ibid.  558;  The  Kate, 
164  U.  S.  458;  The  E.  W.  Parsons,  191  id.  17. 

21  Higgins  v.  Butcher,  Yelv.  89 ;  Ex  parte  Gordon,  104  U.  S.  515. 

22  S.  Co.  v.  Chase,  16  Wall.  522 ;  Sherlock  v.  Ailing,  93  U.  S.  99 ;  Butler 
v.  B.  &  S.  S.  Co.,  130  id.  527. 

23  Ex  parte  Gordon,  104  U.  S.  515 ;  Ex  parte  Ferry  Co.,  ibid.  519. 

24  Ey.  Co.  v.  Whitton,  13  Wall.  270. 


THE   UNITED   STATES   A   PARTY.  209 

of  the  earlier  cases  in  this  country  the  English  test  of  navi- 
gability in  a  legal  sense  was  applied,  but,  as  the  reason  of 
the  rule  failed  here,  and  as  its  adoption  would  have  taken 
out  of  the  jurisdiction  of  admiralty  the  inland  waters  and 
many  rivers  which  are  in  fact  navigable  but  where  there 
is  no  ebb  or  flow  of  the  tide,  the  9th  section  of  the  Judiciary 
Act  of  1789  constituted  navigability  in  fact  the  test  of 
navigability  in  law,  and  the  later  cases  have  followed  that 
statutory  rule.25 

Controversies  to  which  the  United  States  shall  be  a  party. 
94.  The  phrase  "controversies  to  which  the  United 
States  shall  be  a  party"  requires  no  elucidation  further 
than  to  note  that  the  United  States,  as  a  sovereignty,  can- 
not be  sued  without  its  own  consent,26  and  the  constitu- 
tional provision  does  not  impose  upon  Congress  any  duty 
to  constitute  tribunals  to  take  cognizance  of  claims  against 
the  United  States.  Under  this  provision  the  United  States 
may  bring  suit  against  a  state  in  the  Supreme  Court  of 
the  United  States,  but,  by  reason  of  the  state  being  a  sov- 
ereignty, interest  upon  the  principal  found  to  be  due  by 
the  state  will  not  be  awarded,  unless  its  consent  to  pay 
interest  has  been  given  by  its  legislative,  or  executive, 
act.27 

25  The  Genesee  Chief  v.  Fitzhugh,  12  How.  443;  Hobart  v.  Drogan,  10 
Pet.  108;  Waring  v.  Clarke,  5  How.  441;  N.  J.  N.  Co.  v.  Merchants'  Bank, 
6  id.  344;  Fretz  v.  Bull,  12  id.  466;  Allen  v.  Newberry,  21  id.  244;  Maguire 
v.  Card,  ibid.  248 ;  The  St.  Lawrence,  1  Bl.  522 ;  The  Moses  Taylor,  4  Wall. 
411;  The  Hine  v.  Trevor,  ibid.  555;  The  Belfast,  7  id.  624;  The  Eagle,  8  id. 
15;  The  Daniel  Ball,  10  id,  557;  The  Montello,  20  id.  430;  Butler  v.  B.  &  S. 
S.  Co.,  130  U.  S.  527;  Belden  v.  Chase,  150  id.  674;  Moran  v.  Sturges, 
154  id.  256;  P.  E.  v.  Napier  S.  Co.,  166  id.  280;  The  Glide,  167  id.  606; 
Workman  v.  New  York,  179  id.  552 ;  The  E.  W.  Parsons,  191  id.  17. 

26McElrath  v.  U.  S.,  102  U.  S.  426;  Schillinger  v.  U.  S.,  155  id.  163; 
Belknap  v.  Schild,  161  id.  10;  Stanley  v.  Schwalby,  162  id.  255;  Ainsa  v. 
U.  S.,  184  id.  639;  Bigby  v.  U.  S.,  188  id.  400.  See  also  24  Stat.  505,  c.  359. 

2T  U.  S.  v.  North  Carolina,  136  U.  S.  211.  See  U.  S.  v.  Michigan,  190  id. 
379. 


210  THE   JUDICIAL,   POWER. 

Controversies  between  citizens  of  different  states. 

95.  The  phrase,  controversies  "  between  citizens  of  dif- 
ferent states,"  vests  in  the  courts  of  the  United  States 
jurisdiction  over  all  proceedings  in  personam  between 
such  parties.  As  Marshall,  C.  J.,  said  in  Cohens  v.  Vir- 
ginia,28 "If  these  be  the  parties,  it  is  entirely  unimportant 
what  may  be  the  subject  of  controversy.  Be  it  what  it 
may,  these  parties  have  a  constitutional  right  to  come  into 
the  courts  of  the  Union ; ' '  and  as  Field,  J.,  said  in  Gaines 
v.  Fuentes,29  "It  rests  entirely  with  Congress  to  determine 
at  what  time  the  power  may  be  invoked,  and  upon  what 
conditions."30 

A  citizen  of  a  territory,  or  of  the  District  of  Columbia, 
cannot  sue  under  this  clause,31  nor  can  a  state.32  That 
jurisdiction  which  is  dependent  on  the  character  of  the 
parties  does  not  include  proceedings  in  rem,  or  quasi  in 
rem,  such  as  questions  of  probate,33  or  actions  for 
divorce.34 

28  6  Wheat.  378. 

29  92  U.  S.  10,  18. 

30  See  also  Payne  v.  Hook,  7  Wall.  425;  Hyde  v.  Stone,  20  How.  170,  175; 
Ey.  Co.  v.  Whitton,  13  Wall.  270,  287;  Boom  Co.  v.  Patterson,  98  U.  S. 
403;  Dennick  v.  E.  Co.,  103  id.  11;  Ex  parte  Boyd,  105  id.  647;  Koenigs- 
berger  v.  E.  S.  M.  Co.,  158  id.  41;  St.  L.  &  S.  F.  Ey.  v.  James,  161  id.  545; 
St.  J.  &  G.  I.  E.  v.  Steele,  167  id.  659.     The  law  applied  in  controversies  be- 
tween citizens  of  different  states  is  discussed  by  Professor  Pepper  in  ' '  Bor- 
derland of  Federal  and  State  Decisions, "  and  infra,  sec.  109.     And  see 
Bucher  v.  C.  E.,  125  U.  S.  555;  Friedlander  v.  T.  &  P.  Ey.,  130  id.  416;  Clark 
v.  Bever,  139  id.  96;  Scott  v.  Neely,  140  id.  106;  Cross  v.  AUen,  141  id.  528; 
Ellenwood  v.  M.  C.  Co.,  158  id.  105 ;  H.  F.  I.  Co.  v.  C.,  M.  &  St.  P.  Ey.,  175 
id.  91;  Dooley  v.  Pease,  180  id.  126;  W.  U.  T.  Co.v.  C.  P.  Co.,  181  id.  92. 

81  Barney  v.  Baltimore,  6  Wall.  280;  Cameron  v.  Hodges,  127  U.  S.  322; 
Koenigsberger  v.  E.  S.  M.  Co.,  158  id.  41 ;  Hooe  v.  Jamieson,  166  id.  395. 

82  P.  T.  C.  Co.  v.  Alabama,  155  U.  S.  482;  Arkansas  v.  K.  &  T.  C.  Co.,  183 
id.  185 ;  of.  M.,  K.  &  T.  Ey.  v.  Missouri  E.  &  W.  Coinrs.,  ibid.  53. 

83  Fouvergne  v.  New  Orleans,  18  How.  470 ;  Byers  v.  McAuley,  149  U.  S. 
608;  Clarke  v.  Clarke,  178  id.  186;  cf.  Clark  v.  Bever,  139  id.  96;  Hayes  v. 
Pratt,  147  id.  557.     See  also  Ellenwood  v.  M.  C.  Co.,  158  id.  105;  S.  T.  Co. 
v.  B.  E.  Nat.  Bank,  187  id.  211. 

84  Barber  v.  Barber,  21  How.  582. 


CONTROVEKSIES   BETWEEN   STATES.  211 

Controversies  between  two  or  more  states,  etc. 

96.  The  phrases  "controversies  between  two  or  more 
states  .  .  .  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states ' '  seem  to  be  unam- 
biguous. The  cases  of  suits  between  states  have  been 
mainly  controversies  as  to  conflicting  boundaries,35  and  in 
these  cases  there  is  no  doubt  as  to  the  jurisdiction.  In 
1790  it  was  assumed  36  that  the  courts  had  jurisdiction  of 
a  bill  filed  by  one  state  against  another  state  and  grantees 
of  that  other  state  to  enjoin  ejectment  suits  by  those 
grantees  with  regard  to  land,  political  jurisdiction  over 
which  was  claimed  by  both  states,  but  judgment  was  en- 
tered in  favour  of  the  defendant  state  on  the  ground  that 
the  plaintiff  state  had  no  property  interest  in  the  deter- 
mination of  the  ejectment  suits.  It  has  since  been  held 
that  a  state  cannot,  upon  an  allegation  of  a  violation  of  an 
interstate  compact,  enjoin  another  state  and  officers  of  the 
United  States  from  diverting  the  water  of  a  navigable 
river  as  a  result  of  an  improvement  of  navigation  under 
congressional  authority ; 37  nor  can  a  state  in  a  suit  against 
a  municipality  of  another  state,  enjoin  an  improvement  of 
navigation  because  of  an  apprehended  diversion  of  trade 
from  one  of  its  municipalities  to  the  defendant  munici- 
pality ; 38  nor  can  a  state  having  assumed  the  collection  of 
a  debt  due  to  one  of  its  citizens  by  another  state  sue  in  its 
own  name  that  other  state ; 39  nor  can  a  state  in  an  action 

35  New  Jersey  v.  New  York,  5  Pet.  284;  Bhode  Island  v.  Massachusetts, 
12  id.  657,  724;  Missouri  v.  Iowa,  7  How.  660;  Florida  v.  Georgia,  11  id.  293, 
17  id.  478;  Alabama  v.  Georgia,  23  id.  505;  Virginia  v.  West  Virginia,  11 
Wall.  39 ;  Indiana  v.  Kentucky,  136  U.  S.  479 ;  Nebraska  v.  Iowa,  145  id.  519 ; 
Iowa  v.  Illinois,  147  id.  1 ;  Virginia  v.  Tennessee,  148  id.  503 ;  Tennessee  v. 
Virginia,  177  id.  501. 

86  New  York  v.  Connecticut,  4  Dall.  1. 

87  South  Carolina  v.  Georgia,  93  U.  S.  4. 

88  Wisconsin  v.  Duluth,  96  U.  S.  379. 

89  New  Hampshire  v.  Louisiana,  108  U.  S.  76;  cf.  South  Dakota  v.  North 
Carolina,  192  id.  286. 


212  THE    JUDICIAL   POWER. 

against  a  corporation  organized  under  the  laws  of  an- 
other state  invoke  the  exercise  of  the  original  jurisdiction 
of  the  Supreme  Court  to  compel  the  payment  of  a  penalty 
for  a  violation  of  the  law  of  the  plaintiff  state ; 40  nor 
enjoin  the  enforcement  of  the  laws  of  another  state  upon 
an  allegation  that  those  laws,  if  executed,  will  build  up 
the  commerce  of  cities  of  the  defendant  state  to  the 
injury  of  the  commerce  of  the  plaintiff  state.41  On  the 
other  hand,  a  state  may  invoke  the  original  jurisdiction 
of  the  court  by  a  bill  against  another  state  and  a  sanitary 
agency  thereof  to  enjoin  the  discharge  of  sewage  into  a 
river  flowing  through  the  plaintiff  state,42  the  ground  of 
decision  being  that  the  relief  prayed  is  the  abatement  of 
a  nuisance  injurious  to  the  health  of  citizens  of  the  plain- 
tiff state,  which  can  properly  sue  as  par  ens  pat  rice.  So 
also  a  bill  may  be  filed  by  a  state  on  behalf  of  her  citizens, 
as  well  as  in  vindication  of  her  rights  as  an  individual 
owner,  to  restrain  another  state  from  depriving  it  of  the 
waters  of  a  river  accustomed  to  flow  through  and  across 
its  territory,  and  the  consequent  destruction  of  the  prop- 
erty of  herself  and  her  citizens,  and  injury  to  their  health 
and  comfort.43  The  original  jurisdiction  extends  to  a  suit 
by  a  state  as  the  donee  of  certain  bonds  issued  by  another 
state,  and  secured  by  a  mortgage  of  railroad  stock  belong- 
ing to  the  latter  state,  to  compel  payment  of  the  bonds  and 
a  subjection  of  the  mortgaged  property  to  the  satisfaction 
of  the  debt.44  And  that  jurisdiction  also  extends  to  an 
action  by  a  state  against  an  officer  of  the  United  States, 

40  Wisconsin  v.  P.  I.  Co.,  127  U.  S.  265. 

41  Louisiana  v.  Texas,  176  U.  S.  1,  17,  18. 

42  Missouri  v.  Illinois,  180  U.  S,  208 ;  Fuller,  C.  J.,  and  Harlan  and  White, 
JJ.,  dissented. 

43  Kansas  v.  Colorado,  185  U.  S.  125. 

44  South  Dakota  v.  North  Carolina,  192  U.  S.  286;  White,  J.,  Puller,  C.  J., 
and  McKenna  and  Day,  JJ.,  dissented. 


CONTROVERSIES   BETWEEN    STATE   AND    CITIZENS.         213 

where  the  United  States  is  the  real  party  in  interest  ad- 
verse to  the  state.45 

It  has,  however,  been  held  that  as  the  United  States  *  'has 
no  power  to  impose  on  a  state  officer,  as  such,  any  duty 
whatever,  and  compel  him  to  perform  it, "  a  state  cannot, 
by  a  suit  against  the  governor  of  another  state,  compel 
the  performance  of  a  "duty"  by  an  officer  of  that  other 
state,  for  ' '  there  is  no  power  delegated  to  the  general  gov- 
ernment, either  through  the  judicial  department,  or  any 
other  department,  to  use  any  coercive  means  to  compel 
him. " 46  An  Indian  tribe  within  the  United  States,  being 
a  "domestic  dependent  nation,"  and  not  a  state,  can- 
not bring  suit  against  a  state  under  this  clause  of  the 
Constitution.47 

Controversies  between  a  state  and  citizens  of  another 

state,  etc. 

97.  The  clauses  of  the  constitutional  provision,  giving 
jurisdiction  to  the  courts  of  the  United  States  in  ' '  contro- 
versies .  .  .  between  a  state  and  citizens  of  another  state 
.  .  .  and  between  a  state  or  the  citizens  thereof,  and  for- 
eign states,  citizens,  or  subjects, ' '  were,  at  an  early  day  in 
the  history  of  the  government,  the  subject  of  much  contro- 
versy. There  has  never  been  much  question  as  to  the 
jurisdiction  in  causes  in  which  a  state  was  the  plaintiff ;  48 
in  such  cases  it  has  been  denied  only  in  an  action  to  recover 
on  a  judgment  for  a  penalty  for  a  violation  of  municipal 
law,49  and  in  actions  in  which  it  was  necessary  to  join 
citizens  of  the  plaintiff  state  as  parties  defendant ; 50  but 
the  jurisdiction  was  earnestly  contested  in  cases  in  which 

45  Minnesota  v.  Hitchcock,  185  IT.  S.  373.     See  U.  S.  v.  Michigan,  190  id. 
396. 

46  Kentucky  v.  Dennison,  24  How.  66. 

47  The  Cherokee  Nation  v.  Georgia,  5  Pet.  1. 

48  Texas  v.  White,  7  Wall.  700. 

49  Wisconsin  v.  P.  I.  Co.,  127  U.  S.  265. 

50  California  v.  S.  P.  Co.,  157  U.  S.  229;  Minnesota  v.  N.  S.  Co.,  184  id.  199. 


214  THE    JUDICIAL   POWER. 

a  state  was  defendant  and  citizens  of  other  states  were 
plaintiffs.  In  1792  the  Supreme  Court  of  the  United 
States,  in  Chisholm  v.  Georgia,51  the  cause  being  an  action 
of  assumpsit  brought  by  a  citizen  of  South  Carolina 
against  the  state  of  Georgia,  sustained  the  original  juris- 
diction of  the  Supreme  Court  in  suits  by  a  citizen  of  one 
state  against  another  state.  In  consequence  of  that  judg- 
ment, and  for  the  purpose  of  relieving  the  states  from 
liability  to  suits  to  enforce  the  payment  of  their  obliga- 
tions,52 the  XI  Article  of  the  Amendments  to  the  Consti- 
tution was  adopted.53 

Federal  jurisdiction. 

98.  The  jurisdiction  of  the  courts  of  the  United  States 
is,  in  its  character,  either  civil  or  criminal,  and,  in  its  exer- 
cise, either  exclusive  of,  or  concurrent  with,  the  jurisdic- 
tion of  the  courts  of  the  states,  and  either  original  or 
appellate,  first,  by  appeal  from  a  federal  court  of  original 
jurisdiction  to  a  federal  court  of  intermediate,  and  thence 
to  the  federal  court  of  final,  appeal ;  or  second,  by  appeal 
directly  from  the  federal  court  of  original  jurisdiction  to 
the  federal  court  of  final  appeal ;  or  third,  by  appeal  from 
a  state  court  of  last  resort  to  the  federal  court  of  final 
appeal.  The  courts  of  the  United  States  also  exercise  a 
supervisory  jurisdiction,  over  the  courts  of  the  states  by 
the  removal  therefrom,  before  trial,  of  certain  causes  of 
federal  cognizance,54  and  a  general  supervisory  jurisdic- 
tion which  may  be  invoked  by  a  petition  for  a  writ  of 
habeas  corpus,  whenever  a  person  is  in  custody  for  an  act 
done  or  omitted  in  pursuance  of  a  law  of  the  United  States, 
or  of  an  order,  process,  or  decree  of  a  court,  or  a  judge 

51  2  Dall.  419. 

52  Cohens  v.  Virginia,  6  Wheat.  406. 
68  Infra,  Section  115. 

"Infra,  Section  102. 


FEDERAL   JURISDICTION.  215 

thereof,  or  is  in  custody  in  violation  of  the  Constitution, 
or  a  law  or  treaty  of  the  United  States.55 

As  the  courts  of  the  United  States  are  courts  of  limited 
jurisdiction,  the  record  must  show  affirmatively  that  the 
cause  is  necessarily  of  federal  cognizance,  by  reason  of 
either  the  subject-matter  of  litigation,56  or  the  character  of 
the  parties,57  and  this  must  be  formally  averred,58  or  dis- 
tinctly appear  on  the  face  of  the  record.59  If  the  juris- 
dictional  fact  does  appear  on  the  face  of  the  record,  it 
can  only  be  traversed  by  a  plea  to  the  jurisdiction.60 
There  is  a  conclusive  presumption  of  law  that  a  corpora- 
tion and  all  its  members  are  citizens  of  the  state  creating 
the  corporation 61  and  that  a  national  bank  is  a  citizen  of 
the  state  within  which  it  is  located.62 

55  Eev.  Stat.,  sees.  753,  761 ;  In  re  Neagle,  135  U.  S.  1 ;  In  re  Loney,  134 
id.  372;  Medley,  Petitioner,  ibid.  160;  In  re  Frederich,  149  id.  70;  Ohio  v. 
Thomas,  173  id.  276:  Boske  v.  Comingore,  177  id.  459;  cf.  Storti  v.  Massa- 
chusetts, 183  id.  138. 

86Lawler  v.  Walker,  14  How.  149;  Osborn  v.  Bank  of  the  United  States, 
9  Wheat.  738,  823;  Mills  v.  Brown,  16  Pet.  525;  E.  Co.  v.  Eock,  4  Wall.  177, 
180;  Tennessee  v.  Union  &  Planters'  Bank,  152  U.  S.  454;  ChappeU  v. 
Waterworth,  155  id.  102;  P.  T.  C.  Co.  v.  Alabama,  ibid.  482;  E.  L.  L.  Co. 
v.  Brown,  ibid.  488 ;  Sayward  v.  Denny,  158  id.  180 ;  H.  &  T.  C.  E.  v.  Texas, 
177  id.  66;  W.  U.  T.  Co.  v.  A.  A.  E.,  178  id.  239;  of.  K.  W.  P.  Co.  v.  G.  B. 
C.  Co.,  142  id.  254. 

67  Dred  Scott  v.  Sandf ord,  19  How.  393 ;  Bingham  v.  Cabot,  3  Ball.  382 ; 
Capron  v.  Van  Noorden,  2  Cr.  126;  Breithaupt  v.  Bank  of  Georgia,  1  Pet. 
238 ;  Brown  v.  Keene,  8  id.  112,  115 ;  HornthaU  v.  The  Collector,  9  Wall.  560 ; 
Godfrey  v.  Terry,  97  U.  S.  171;  Eobertson  v.  Cease,  ibid.  646;  Grace  v. 
A.  C.  I.  Co.,  109  id.  278,  283;  Cameron  v.  Hodges,  127  id.  322;  Chapman  v. 
Barney,  129  id.  677;  Stevens  v.  Nichols,  130  id.  230;  Timmons  v.  E.  L.  Co., 
139  id.  378 ;  Denny  v.  Pironi,  141  id.  121 ;  Mattingly  v.  N.  W.  V.  E.,  158  id. 
53;  I.  C.  &  I.  Co.  v.  Gibney,  160  id.  217;  St.  L.  &  S.  F.  Ey.  v.  James,  161 
id.  545;  Benjamin  v.  New  Orleans,  169  id.  161. 

58  Montalet  v.  Murray,  4  Cr.  46. 

59  Jones  v.  Andrews,  10  WaU.  327;  Godfrey  v.  Terry,  97  U.  S.  171;  Eobert- 
son v.  Cease,  ibid.  646.     See  also  Arbuckle  v.  Blackburn,  191  id.  405;  Min- 
nesota v.  N.  S.  Co.,  194  id.  48. 

60  Wickliffe  v.  Owings,  17  How.  47. 

61  O.  &  M.  E.  v.  Wheeler,  1  Bl.  286;  B.  &  O.  E.  v.  Harris,  12  WaU.  65; 
Ey.  Co.  v.  Whitton,  13  id.  270;  Muller  v.  Dows,  94  U.  S.  444;  St.  L.  &  S.  F. 
Ey.  v.  James,  161  id.  545 ;  Blake  v.  McClung,  172  id.  239 ;  S.  Ey.  v.  Allison, 
190  id.  326;  cf.  St.  J.  &  G.  I.  E.  v.  Steele,  167  id.  659. 

62  Act  13th  Aug.,  1888,  sec.  4,  25  Stat.  433. 


216  THE    JUDICIAL    POWER. 

Original  process  of  the  circuit  and  district  courts  does 
not  run  outside  of  the  district  in  which  the  suit  is  brought.63 

Where  the  jurisdiction  depends  on  diverse  citizenship, 
suit  can  be  brought  only  in  the  district  of  the  residence  of 
either  the  plaintiff  or  defendant.64 

An  assignee  of  a  chose  in  action  cannot  sue  on  the 
ground  of  diverse  citizenship  where  his  assignor  could  not 
sue,  save  in  actions  upon  foreign  bills  of  exchange  and  in 
actions  against  corporations.65 

In  causes  of  criminal  cognizance,  the  original  jurisdic- 
tion of  the  federal  courts  is  limited  in  two  respects.  In  the 
first  place,  those  courts  cannot  take  cognizance  of  an  act 
alleged  to  be  criminal,  which  has  not  been  declared  to  be 
such  by  an  act  of  Congress.66  In  the  second  place,  Con- 
gress cannot,  under  the  Constitution,  declare  an  act  to  be 
criminal,  unless,  as  Field,  J.,  said,67  that  act  has  "some  re- 
lation to  the  execution  of  a  power  of  Congress,  or  to  some 
matter  within  the  jurisdiction  of  the  United  States. " 
Thus,  a  murder  committed  on  board  a  vessel  of  the  navy 
of  the  United  States  while  at  anchor  in  navigable  waters 
within  the  jurisdiction  of  a  state  is  not  cognizable  in  a 
court  of  the  United  States ; 68  Congress  cannot  make  it  a 
misdemeanor  to  sell  within  the  territory  of  a  state  illumi 
nating  oil  inflammable  at  less  than  a  specified  tempera- 
ture ; 69  while  Congress  may  legislate  with  regard  to  bank 
ruptcy,  and  may  prohibit  and  declare  to  be  punishable  the 
commission  of  a  fraud  in  contemplation  of  bankruptcy,  it 
cannot  constitute  the  obtaining  of  goods  on  false  pretences 

63  Ibid.,  sec.  1. 
"Ibid.,  sec.  1. 

65  Ibid.,  sec.  1. 

66  U.  S.  v.  Hudson,  7  Cr.  32;  U.  S.  v.  Coolidge,  1  Wheat.  415;  Bush  v.  Ken- 
tucky, 107  U.  S.  110;  Jones  v.  U.  S.,  137  id.  202,  211.     But  see  Tennessee 
v.  Davis,  100  id.  257. 

67  U.  S.  v.  Fox.,  95  U.  S.  670. 

68  U.  S.  v.  Bevans,  3  Wheat.  336. 
68  U.  S.  v.  Dewitt,  9  Wall.  41. 


EXCLUSIVE   AND   CONCUEEENT   JURISDICTION.  217 

with  intent  to  defraud,  but  not  in  contemplation  of  bank- 
ruptcy, to  be  an  offense  against  the  United  States ; 70  and 
Congress  cannot  by  statute  provide  for  the  punishment  of 
state  election  officers  for  wrongully  refusing  to  receive  the 
vote  of  a  qualified  voter  at  an  election,  when  that  refusal  is 
not  based  upon  a  discrimination  against  the  voter  on  ac- 
count of  his  race,  colour,  or  previous  condition  of  servi- 
tude.71 

Exclusive  and  concurrent  jurisdiction. 

99.  It  is  a  principle  of  constitutional  construction,  as 
stated  by  Marshall,  C.  J.,  in  Sturges  v.  Crowninshield,72 
that  "whenever  the  terms  in  which  a  power  is  granted 
to  Congress,  or  the  nature  of  the  power,  require  that  it 
should  be  exercised  exclusively  by  Congress,  the  subject 
is  as  completely  taken  from  the  state  legislatures  as  if 
they  had  been  expressly  forbidden  to  act  on  it."73  In 
conformity  with  this  principle,  it  has  been  decided  in  Mar- 
tin v.  Hunter's  Lessee,74  and  in  The  Moses  Taylor,75  that 
Congress  has  power  to  divest  the  courts  of  the  states  of 
jurisdiction  over  all  subject-matters  which  are  included 
within  the  constitutional  grant  of  judicial  power  to  the 
United  States,  or  whose  determination  by  the  judicial 
power  of  the  United  States  is  necessary  to  the  exercise  by 
Congress  of  its  constitutional  power  of  legislation,  and 
where  Congress  has  expressed  its  will  that,  as  to  any  par- 
ticular subject-matter  of  federal  cognizance  the  jurisdic- 

70  U.  S.  v.  Fox,  95  U.  S.  670. 

71  U.  S.  v.  Reese,  92  U.  S.  214;  U.  S.  v.  Cruikshank,  ibid.  542. 

72  4  Wheat.  193. 

78  See  also  Houston  v.  Moore,  5  Wheat.  1 ;  Oilman  v.  Philadelphia,  3  Wall. 
713,  730. 

74 1  Wheat.  304. 

75  4  Wall.  411.  See  also  Cohens  v.  Virginia,  6  Wheat.  314,  315,  325 ;  Slocum 
v.  Mayberry,  2  id.  9 ;  Gelston  v.  Hoyt,  3  id.  246 ;  Waring  v.  Clarke,  5  How. 
451;  G.,  C.  &  S.  F.  Ey.  v.  Hefley,  158  U.  S.  98.  Sed.  cf.  Story's  Com- 
mentaries, sec.  1672,  note  4. 


218  THE   JUDICIAL   POWER. 

tion  of  the  courts  of  the  United  States  shall  be  exclusive, 
the  courts  of  the  states  cannot  take  cognizance  of  such 
sub  j  ect-matter.76 

Of  course,  the  Constitution,  having  granted  the  power, 
and  not  having  commanded  Congress  to  exercise  it,  it  is 
for  Congress  to  determine  when  and  to  what  extent  it  will 
exercise  it.  Therefore,  the  jurisdiction  of  the  courts  of 
the  United  States  within  the  limits  imposed  by  the  Con- 
stitution is  either  exclusive  of,  or  concurrent  with,  that  of 
the  courts  of  the  states,  as  Congress  may,  from  time  to 
time,  determine.77  As  the  law  now  is,  the  jurisdiction  of 
the  courts  of  the  United  States  is  exclusive  of  that  of  the 
states  in  cases  of  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States ;  in  suits  for  penalties  and 
forfeitures  incurred  under  the  laws  of  the  United  States ; 
in  civil  causes  of  admiralty  and  maritime  jurisdiction, 
saving  to  suitors  in  all  cases  the  right  of  a  common-law 
remedy,  where  the  comon  law  is  competent  to  give  it;  in 
seizures  under  the  laws  of  the  United  States  on  land  or  on 
waters  not  within  admiralty  and  maritime  jurisdiction; 
in  cases  arising  under  the  patent  right  or  copyright  laws 
of  the  United  States;  in  all  matters  and  proceedings  in 

76  In  Claflin  v.  Houseman,  93  U.  S.  130,  Bradley,  J.,  said,  the  general  prin- 
ciple is,  "that,  where  jurisdiction  may  be  conferred  on  the  United  States 
courts,  it  may  be  made  exclusive  where  not  so  by  the  Constitution  itself ;  but, 
if  exclusive  jurisdiction  be  neither  express  nor  implied,  the  state  courts  have 
concurrent  jurisdiction  whenever,  by  their  own  constitution,  they  are  com- 
petent to  take  it. ' '  In  Eobertson  v.  Baldwin,  165  U.  S.  275,  Brown,  J.,  said 
that  the  judicial  power  which  the  Constitution  intended  to  confine  to  courts 
created  by  Congress  ' '  extends  only  to  the  trial  and  determination  of  '  cases ' 
in  courts  of  record,  and  Congress  is  still  at  liberty  to  authorize  the  judicial 
officers  of  the  several  states  to  exercise  such  power  as  is  ordinarily  given  to 
officers  of  courts  not  of  record;  such,  for  instance,  as  the  power  to  take 
affidavits,  to  arrest  and  commit  for  trial  offenders  against  the  laws  of  the 
United  States,  to  naturalize  aliens,  and  to  perform  such  other  duties  as  may 
be  regarded  as  incidental  to  the  judicial  power  rather  than  a  part  of  the 
judicial  power  itself." 

"  Martin  v.  Hunter 's  Lessee,  1  Wheat.  304,  331,  333 ;  The  Moses  Taylor, 
4  Wall.  411,  429. 


THE    COURTS    OF    THE    UNITED    STATES. 


219 


bankruptcy ;  in  all  controversies  of  a  civil  nature,  where  a 
state  is  a  party,  except  between  a  state  and  its  citizens,  or 
between  a  state  and  citizens  of  other  states,  or  aliens ;  and 
in  all  suits  or  proceedings  against  ambassadors,  or  other 
public  ministers,  or  their  domestics,  or  domestic  servants, 
or  against  consuls  or  vice-consuls.78 

The  courts  of  the  United  States. 

100.  The  courts  of  the  United  States  are  the  district 
courts,  the  circuit  courts,  the  circuit  courts  of  appeal, 
and  the  Supreme  Court.  The  jurisdiction  of  the  district 
and  circuit  courts  is  exclusively  original  ;that  of  the  circuit 
courts  of  appeal  exclusively  appellate;  and  that  of  the 
Supreme  Court  both  original  and  appellate.  The  United 
States  is  divided  into  judicial  districts,  in  some  cases  one 
state  constituting  a  judicial  district,  and,  in  other  cases, 
a  state  including  within  its  territory  two  or  more  districts. 
There  are  also  a  court  of  claims,  a  court  of  private  land 
claims,  and  in  certain  foreign  countries,  consular  courts, 
and  in  the  territories  and  in  Alaska,  Hawaii,  Porto  Rico, 
and  the  Philippines,  territorial  courts,  whose  jurisdiction 
and  procedure  are  foreign  to  the  subject  of  this  book. 
There  is  for  each  district  court  one  judge,  who  is  required 
by  statute  to  reside  within  his  district. 

There  are  nine  circuit  courts,  the  United  States  being 
divided  into  nine  circuits,  each  circuit  including  the  dis- 
tricts in  three,  or  more,  states.  For  each  circuit  there  are 
two,  or  more,  circuit  judges,  and  in  addition  thereto,  the 
justice  of  the  Supreme  Court  allotted  to  that  circuit.  The 
circuit  courts  have  no  longer  any  appellate  jurisdiction.79 

In  each  circuit  there  is  a  circuit  court  of  appeals,  con- 
stituted at  any  one  time  of  three  judges,  of  whom  two  are 

78  Eev.  Stat.,  sec.  711. 

79  Act  3d  Mar.,  1891,  c.  517,  sec.  4,  26  Stat.  826. 

15 


220  THE    JUDICIAL.   POWEK. 

a  quorum.80  The  judges  therein  are  the  Supreme  Court 
justice  assigned  to  the  circuit,  the  circuit  judges,  and  the 
several  district  judges  thereof.  The  Supreme  Court  now 
consists  of  a  chief  justice  and  eight  associate  justices, 
any  six  of  whom  constitute  a  quorum ;  but  Congress  may 
increase,  or  decrease,  the  number  of  justices,  or  change 
the  quorum. 

Original  jurisdiction. 

101.  The  original  jurisdiction  of  the  courts  of  the  United 
States  is  exercised  in  some  cases  by  the  Supreme  Court, 
and,  in  other  cases,  by  the  inferior  courts.  As  Johnson, 
J.,  said  in  United  States  v.  Hudson,81  "Only  the  Supreme 
Court  possesses  jurisdiction  derived  immediately  from  the 
Constitution,  and  of  which  the  legislative  power  cannot 
deprive  it.  All  other  courts  created  by  the  general  gov- 
ernment possess  no  jurisdiction  but  what  is  given  them  by 
the  power  that  creates  them,  and  can  be  vested  with  none 
but  what  the  power  ceded  to  the  general  government  will 
authorize  them  to  confer/' 

The  original  jurisdiction  of  the  Supreme  Court  is  lim- 
ited by  the  Constitution  to  "cases  affecting  ambassadors, 
other  public  ministers,  and  consuls,  and  those  in  which  a 
state  shall  be  party. "  Congress  cannot  confer  upon  the 
Supreme  Court  any  original  jurisdiction  other  than  that 
so  conferred  by  the  express  terms  of  the  Constitution.82 
Whether  or  not  Congress  can  authorize  other  courts  of 
the  United  States  to  exercise  concurrent  original  juris- 
diction in  the  cases,  original  jurisdiction  over  which  is 
vested  by  the  Constitution  in  the  Supreme  Court,  was  for 
a  long  time  an  unsettled  question.  In  U.  S.  v.  Ortega,83 

80  Act  3d  Mar.,  1891,  c.  517,  26  Stat.  826. 

81  7  Or.  32. 

82  Marbury  v.  Madison,  1  Cr.  137. 
88 11  Wheat.  467. 


ORIGINAL   JURISDICTION. 


221 


the  question  was  raised,  but  not  decided,  but  in  Bors  v. 
Preston,84  it  was  determined,  that  the  Congress  might  con- 
fer a  concurrent  original  jurisdiction  upon  the  circuit 
courts  of  the  United  States  in  actions  against  consuls  of 
foreign  states.85  The  Supreme  Court  may  also  issue 
writs  of  prohibition  to  the  admiralty  courts,86  and  writs 
of  mandamus  87  "in  cases  warranted  by  the  principles  and 
usages  of  law. ' ' 88 

The  original  jurisdiction  of  the  subordinate  courts  of 
the  United  States,  excepting  the  circuit  courts  of  appeal, 
which  have  no  original  jurisdiction,89  is,  in  the  main,  as 
follows : 

On  the  civil  side,  the  circuit  courts  have  original  juris- 
diction, concurrent  with  the  courts  of  the  states,  of  all  suits 
at  common  law,  or  in  equity,  where  the  matter  in  dispute, 
exclusive  of  interest  and  costs,  exceeds  two  thousand  dol- 
lars, first,  where  the  controversy  arises  under  the  Consti- 
tution, laws,  or  treaties  of  the  United  States ;  second,  where 
the  controversy  is  between  citizens  of  different  states,  or 
between  citizens  of  a  state  and  foreign  states,  citizens,  or 
subjects ;  third,  where  the  controversy  is  between  citizens 
of  the  same  state  claiming  land  under  grants  of  different 
states;  and,  fourth,  where  the  United  States  are  plain- 
tiffs.90 The  circuit  courts  also  have  jurisdiction,  without 
pecuniary  limitation,  of  all  suits  under  internal  revenue 
and  postal  laws ; 91  of  all  suits  for  penalties  under  laws 
regulating  the  carriage  of  passengers  in  merchant  ves- 

84  111  U.  S.  252. 

85Eev.  Stat.,  sec.  687.  See  also  Ames  v.  Kansas,  111  U.  S.  449;  P.  T.  C. 
Co.  v.  Alabama,  155  id.  482.  But  see  Curtis 's  Jurisdiction  of  the  Courts  of 
the  U.  S.,  p.  10. 

86  U.  S.  v.  Peters,  3  Ball.  121. 

87  Hayburn  's  Case,  2  Dall.  409. 
^Eev.  Stat.,  sec.  688. 

88  See  Act  3d  Mar.,  1891,  c.  517,  26  Stat.  826. 
90  Act  13th  Aug.,  1888,  c.  866,  25  Stat.  433. 
wEev.  Stat.,  sec.  629. 


222  THE    JUDICIAL    POWER. 

sels ; 92  of  patent,93  copyright,94  and  trade-mark 95  cases ; 
of  winding-up  suits  against  national  banks ;  96  and  of  suits 
to  recover  damages  for  injuries  to  the  person  or  property 
under  revenue  laws.97 

The  circuit  courts  also  have  original  jurisdiction  under 
the  Anti-trust  Act  of  1890,98  and  under  the  Interstate  Com- 
merce Act "  and  in  customs  cases.100 

The  circuit  courts  also  have  original  jurisdiction,  con- 
current with  the  court  of  claims,  of  all  claims  against  the 
United  States,  when  the  matter  in  dispute,  exclusive  of 
costs,  exceeds  one  thousand  dollars  and  does  not  exceed  ten 
thousand  dollars.1 

The  circuit  courts  have  also,  on  the  criminal  side,  ex- 
clusive cognizance  of  all  crimes  and  offenses  made  such  by 
the  statutes  of  the  United  States,  except  where  otherwise 
provided  by  law,  and  concurrent  jurisdiction  with  the  dis- 
trict courts  of  crimes  and  offenses  cognizable  therein.2 

The  district  courts  have  original  jurisdiction  of  all 
crimes  and  offenses  made  such  by  the  statutes  of  the 
United  States  when  committed  within  their  respective  dis- 
tricts, or  upon  the  high  seas,  and  the  punishment  of  which 
is  not  capital ;  and  on  the  civil  side,  of  all  suits  for  penalties 
and  forfeitures ;  of  all  suits  at  common  law  brought  by  the 
United  States,  or  by  any  officer  thereof,  authorized  by  law 
to  sue ;  of  all  suits  in  equity  to  enforce  liens,  etc.,  under  the 

92  Eev.  Stat.,  sec.  629. 

93  Eev.  Stat,  sec.  629 ;  Act  3d  Mar.,  1897,  c.  395,  29  Stat.  695. 

94  Eev.  Stat.,  sec.  629;  Act  6th  Jan.,  1897,  c.  4,  29  Stat.  481. 

95  Act  3d  Mar.,  1881,  c.  138,  21  Stat.  502. 

"Act  13th  Aug.,  1888,  c.  866,  sec.  4,  25  Stat.  436,  amending  Eev.  Stat., 
sec.  629. 

97  Eev.  Stat.,  sec.  629. 

88  Act  2d  July,  1890,  c.  647,  26  Stat.  209. 

99  Acts  4th  Feb.,  1887,  c.  104,  sec.  16,  24  Stat.  384;  2d  March,  1889,  c.  382, 
sec.  5,  25  Stat.  855. 

100  Under  sec.  15  of  the  Act  of  10th  June,  1890,  c.  407,  26  Stat.  131. 
xAct  3d  Mar.,  1887,  c.  359,  sec.  2,  24  Stat.  505. 

2  Act  13th  Aug.,  1888,  c.  866,  25  Stat.  433. 


APPELLATE   AND    SUPERVISORY    JURISDICTION.  223 

internal  revenue  statutes ;  of  suits  for  the  recovery  of  for- 
feitures or  damages  due  to  the  United  States ;  of  all  causes 
of  action  under  the  postal  laws;  of  admiralty  causes, 
saving  to  suitors  their  common-law  remedies,  if  any ;  and 
of  all  litigation  in  bankruptcy.3  The  district  courts  have 
also  concurrent  jurisdiction  with  the  court  of  claims  in 
claims  against  the  United  States  when  the  matter  in  dis- 
pute does  not  exceed  one  thousand  dollars.4 

The  court  of  claims  has  original  jurisdiction  of  claims 
against  the  United  States,  and  of  set-offs  against  the  claims 
sued  on.5 

Appellate  and  supervisory  jurisdiction. 

102.  As  the  Constitution  has  declared  that  in  all  cases, 
other  than  those  in  which  original  jurisdiction  has  been 
by  its  terms  vested  in  the  Supreme  Court,  that  court  '  '  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions,  and  under  such  regulations  as  the  Con- 
gress shall  make, ' '  Congress  may  define  and  limit  the  ap- 
pellate jurisdiction  of  the  Supreme  Court,6  but  the  Su- 
preme Court  cannot  be  required  to  review  the  actions  of 
officers  of  the  United  States  under  legislative  or  executive 
references.7  In  the  exercise  of  its  appellate  jurisdiction 
the  Supreme  Court  of  the  United  States  may  review  the 
final  judgments  and  decrees  of  the  inferior  courts  of  the 
United  States  under  the  restrictions  stated  in  the  acts  of 
Congress,8  and  it  may  review  the  final  judgments  or  decrees 
of  the  courts  of  last  resort  of  the  states  in  causes  either 

3Eev.  Stat.,  sec.  563. 

*  Act  3d  Mar.,  1887,  c.  359,  sec.  2,  24  Stat.  505. 

5Eev.  Stat.,  sec.  1059  et  seq. 

6  Wiscart  v.  Dauchy,  3  Dall.  321 ;  Durousseau  v.  U.  S.,  6  Cr.  307,  314 ;  The 
Francis  Wright,  105  U.  S.  381 ;  L.  &  G.  W.  S.  Co.  v.  P.  I.  Co.,  129  id.  397. 

7Hayburn's  Case,  2  Dall.  409;  Hunt  v.  Palao,  4  How.  589;  McNulty  v. 
Batty,  10  id.  72;  U.  S.  v.  Ferreira,  13  id.  40;  Gordon  v.  U.  S.,  2  Wall.  561. 
See  also  language  of  Taney,  C.  J.,  in  appendix  to  117  U.  S. 

8  Eev.  Stat.,  sec.  690  et  seq. 


224  THE    JUDICIAL    POWER. 

civil  or  criminal,  "  where  is  drawn  in  question  the  validity 
of  a  statute  of,  or  an  authority  exercised  under  any  state, 
on  the  ground  of  their  being  repugnant  to  the  Constitu- 
tion, treaties,  or  laws  of  the  United  States,  and  the  de- 
cision is  in  favour  of  their  validity;  or  where  any  title, 
right,  privilege,  or  immunity  is  claimed  under  the  Con- 
stitution, or  any  treaty  or  statute  of,  or  commission  held 
or  authority  exercised  under,  the  United  States,  and  the 
decision  is  against  the  title,  right,  privilege,  or  immunity 
specially  set  up  or  claimed  by  either  party,  under  such 
Constitution,  treaty,  statute,  commission,  or  authority. ' ' 9 
But  even  though  the  state  court  of  last  resort  passes  upon 
a  question  federal  in  its  nature,  if  the  decision  also  in- 
volves an  independent  ground  sufficiently  broad  to  sustain 
the  judgment,  that  decision  cannot  be  questioned  in  the 
Supreme  Court.10  The  courts  of  the  United  States  also 
exercise  a  supervisory  jurisdiction  over  the  courts  of  the 
states  by  a  removal  from  a  court  of  a  state  to  a  federal 
court  of  a  cause,  either  civil  or  criminal,  depending  but 


9  Eev.  Stat.,  sec.  709.     See  also  Cohens  v.  Virginia,  6  Wheat.  264 ;  Worces- 
ter v.  Georgia,  6  Pet.  515;  Twitehell  v.  The  Commonwealth,  7  Wall.  321; 
Spies  v.  Illinois,  123  U.  S.  131;  Burthe  v.  Denis,  133  id.  514;  Missouri  v. 
Andriano,  138  id.  496 ;  Etheridge  v.  Sperry,  139  id.  266 ;  Williams  v.  Heard, 
140  id.  529;  Metropolitan  Bank  v.  Claggett,  141  id.  520;  Boyd  v.  Nebraska, 
143  id.  135 ;  Eoby  v.  Colehour,  146  id.  153 ;  Sayward  v.  Denny,  158  id.  180 ; 
C.  &  N.  W.  By.  v.  Chicago,  164  id.  454;  Dewey  v.  Des  Moines,  173  id.  193; 
Scudder  v.  Comptroller,  175  id.  32 ;  Boske  v.  Comingore,  177  id.  459 ;  Eoths- 
child  v.  Knight,  184  id.  334;  M.  L.  I.  Co.  v.  McGrew,  188  id.  291;  Hooker  v. 
Los  Angeles,  ibid.  314;  N.  M.  B.  &  L.  Assn.  v.  Brahan,  193  id.  635;   cf. 
Moran  v.  Horsky,  178  id.  205;  Y.  &  M.  V.  Ey.  v.  Adams,  180  id.  1. 

10  De  Saussure  v.  Gaillard,  127  U.  S.  216;  Hale  v.  Akers,  132  id.  554;  Hop- 
kins v.  McLure,  133  id.  380;  Beatty  v.  Benton,  135  id.  244;  Johnson  v.  Eisk, 
137  id.  300;  Cook  County  v.  C.  &  C.  C.  &  D.  Co.,  138  id.  635;  Hammond  v. 
Johnston,  142  id.  73 ;  Eustis  v.  Bolles,  150  id.  361 ;  E.  E.  v.  C.  V.  E.,  159  id. 
630;  Seneca  Nation  v.  Christy,  162  id.  283;  Allen  v.  S.  P.  E.,  173  id.  479; 
Seeberger  v.  McCormick,  175  id.  274;  Moran  v.  Horsky,  178  id.  205;  Hale 
v.  Lewis,  181  id.  473;  Howard  v.  Fleming,  191  id.  126.     See  also  Dreyer  v. 
Illinois,  187  id.  71. 


APPELLATE   AND   SUPERVISORY   JURISDICTION.  225 

not  yet  finally  adjudicated  in  the  state  court,11  or  by  the 
issue  of  a  writ  of  habeas  corpus  in  cases  of  a  restraint  of 
personal  liberty  under  process  of  a  court  of  a  state,  void 
by  reason  of  the  offense  with  which  the  prisoner  is  charged 
being  a  matter  of  federal,  and  not  of  state,  cognizance, 
or  by  reason  of  the  restraint  of  a  prisoner  in  violation  of 
the  Constitution,  or  of  any  treaty,  or  law  of  the  United 
States.12  The  right  of  appeal,  or  of  removal,  or  to  the 
writ  of  habeas  corpus,  is  in  any  case  dependent,  not  only 
on  the  federal  character  of  the  question  involved,  or  the 
right  of  the  party  to  sue  in  the  federal  court,  but  also  on 
the  terms  of  the  act  of  Congress  authorizing  the  exercise 
by  the  court  of  the  United  States  of  its  supervisory  juris- 
diction in  the  particular  case.  The  Constitution  does  not 
expressly  authorize  the  removal  of  causes  of  federal  cog- 
nizance from  the  courts  of  the  states  to  the  courts  of  the 
United  States  before  final  judgment,  nor  does  it  expressly 
authorize  the  review  of  such  causes  in  the  Supreme  Court 
of  the  United  States  after  the  entry  of  final  judment  in 
a  court  of  a  state,  nor  does  it  expressly  authorize  the  re- 
lease by  a  court  of  the  United  States  after  a  hearing  on 


"West  v.  Aurora  City,  6  Wall.  139;  Philadelphia  v.  The  Collector,  5  id. 
720;  The  Mayor  v.  Cooper,  6  id.  247;  Tennessee  v.  Davis,  100  U.  S.  257; 
Removal  Cases,  ibid.  457;  Ames  v.  Kansas,  111  id.  449;  Young  v. 
Parker,  132  id.  267;  Bock  v.  Perkins,  139  id.  628;  Marshall  v.  Holmes,  141 
id.  589;  Martin  v.  B.  &  O.  E.,  151  id.  673;  cf.  Brown  v.  Trousdale,  138  id. 
389;  Bellaire  v.  B.  &  O.  E.,  146  id.  117;  Chappell  v.  Waterworth,  155  id. 
102;  E.  L.  L.  Co.  v.  Brown,  ibid.  488;  Arkansas  v.  K.  &  T.  C.  Co.,  183  id.  185. 

12  In  re  Loney,  134  U.  S.  372 ;  Medley,  Petitioner,  i&id.  160 ;  In  re  Neagle, 
135  id.  1;  In  re  Frederich,  149  id.  70;  Ohio  v.  Thomas,  173  id.  276;  Boske 
v.  Comingore,  177  id.  459;  cf.  Storti  v.  Massachusetts,  183  id.  138.  But 
ordinarily  the  writ  issues  only  when  the  court  under  whose  warrant  the 
petitioner  is  held  is  without  jurisdiction.  In  re  Duncan,  139  U.  S.  449; 
Whitten  v.  Tomlinson,  160  id.  231 ;  Crossley  v.  California,  168  id.  640 ;  Baker 
v.  Grice,  169  id.  284 ;  Tinsley  v.  Anderson,  171  id.  101 ;  Harkrader  v.  Wadley, 
172  id.  148;  Markuson  v.  Boucher,  175  id.  184;  Davis  v.  Burke,  179  id.  399; 
Minnesota  v.  Brundage,  180  id.  499.  See  also  U.  S.  v.  Sing  Tuck,  194  id. 
161;  cf.  Ex  parte  Eoyall,  117  id.  241,  252;  New  York  v.  Eno,  155  id.  89; 
Eev.  Stat.,  sec.  751  et  seq. 


226  THE    JUDICIAL    POWER. 

habeas  corpus  of  a  prisoner  indicted  in  a  state  court  for 
doing  that  which  under  the  Constitution  and  laws  of  the 
United  States  he  may  rightfully  do,  but  the  right  of  re- 
moval, the  right  of  appeal,  and  the  right  to  a  discharge 
after  hearing  on  habeas  corpus,  alike  result  from  the  con- 
stitutional declaration  of  the  supremacy  of  the  Constitu- 
tion and  laws  of  the  United  States. 

The  circuit  courts  have  no  appellate  jurisdiction.13 
The  appellate  jurisdiction  of  each  circuit  court  of  ap- 
peals is  exercised  by  appeal  or  by  writ  of  error  from  the 
district  and  circuit  courts  within  its  circuit,  and  from  ter- 
ritorial courts  attached  by  statute  to  its  circuit,  in  all  cases 
other  than  those  in  which  the  Supreme  Court  has  direct 
appellate  jurisdiction,14  and  the  judgments  or  decrees  of 
each  circuit  court  of  appeal  are  final  in  all  cases  in  which 
the  jurisdiction  is  dependent  exclusively  upon  diverse  citi- 
zenship ;  and  in  all  patent,  revenue,  and  admiralty  causes, 
and  in  all  prosecutions  not  directly  appealable  from  the 
district,  or  circuit,  courts  to  the  Supreme  Court;  except- 
ing that  upon  every  subject  within  its  appellate  jurisdic- 
tion, a  circuit  court  of  appeals  may  certify  to  the  Supreme 
Court  of  the  United  States  any  question  of  law  concerning 
which  the  circuit  court  of  appeals  desires  the  instruction 
of  the  Supreme  Court  for  a  proper  decision;  and  except- 
ing also  that  the  Supreme  Court  may,  in  any  case,  require 
a  circuit  court  of  appeals  to  certify  any  case  for  final 
review  and  determination.15 

The  appeals  or  writs  of  error  may  be  taken  from  the 
circuit  court  of  appeals  to  the  Supreme  Court  in  all  cases 
in  which  the  judgment  or  decree  of  the  circuit  court  of 
appeals  is  not  made  final  by  statute ;  and  appeals  or  writs 
of  error  may  be  taken  directly  from  the  district  and  circuit 

13  Act  3d  Mar.,  1891,  c.  517,  sec.  4,  26  Stat.  826. 

14  Ibid.,  sec.  5. 

sec.  6. 


APPELLATE    AND    SUPERVISORY    JURISDICTION.  227 

courts  to  the  Supreme  Court  from  final  sentences  and 
decrees  in  prize  causes ;  in  cases  of  conviction  of  a  capital 
or  otherwise  infamous  crime;  in  any  case  involving  the 
construction  or  application  of  the  Constitution  of  the 
United  States ;  in  any  case  in  which  is  drawn  in  question 
the  constitutionality  of  any  law  of  the  United  States,  or 
the  validity  or  construction  of  any  treaty  made  under  its 
authority ;  in  any  case  in  which  the  constitution  or  law  of 
a  state  is  claimed  to  be  in  contravention  of  the  Constitu- 
tion of  the  United  States ;  and  on  any  case  in  which  the 
jurisdiction  of  the  court  is  in  issue,  but  in  such  cases  the 
question  of  jurisdiction  alone  shall  be  certified  by  the  court 
below  for  decision.16 

The  appellate  jurisdiction  of  the  Supreme  Court  also 
extends  to  final  judgments  of  the  court  of  claims.17 

The  supervisory  jurisdiction  of  the  federal  courts  is  ex- 
ercised by  removal,  upon  petition  of,  and  bond  filed  by, 
the  defendant  before  filing  plea  or  answer,  of  a  pending 
civil  cause  from  a, state  court  to  the  circuit  court  of  the 
United  States  of  the  proper  district  where  the  case  is  one 
of  a  class  of  which  the  circuit  court  has  jurisdiction  under 
the  statutes,  and  whe-re  the  -suit  arises  under  the  Constitu- 
tion, laws,  or  treaties  of  the  United  States,  or  where  the 
defendant  is  a  non-resident  of  the  state,  or  where  the  con- 
troversy is  wholly  between  citizens  of  different  states,  and 
it  can  be  fully  determined  as  between  them,  or  where  it 
shall  be  made  to  appear  before  the  circuit  court  that  the 
defendant,  being  a  citizen  of  a  state  other  than  that  in 
which  the  action  is  pending,  cannot,  by  reason  of  appre- 
hended prejudice  or  local  influence,  obtain  justice  in  the 
state  court.18  The  circuit  court  may  remand  to  the  state 
court  any  cause  not  properly  removed.19 

16  Act  3d  Mar.,  1891,  c.  517,  sec.  5,  ut  supra. 
17Eev.  Stat.,  sec.  709. 

18  Act  13th  Aug.,  1888,  c.  866,  25  Stat.  433. 

19  Ibid. 


228  THE   JUDICIAL   POWER. 

It  is  foreign  to  the  purpose  of  this  book  to  discuss  in 
detail  the  practice  in  the  different  courts. 


The  necessity  of  a  judicial  "case." 

103.  Whatever  be  the  form  in  which  the  jurisdiction  of 
the  courts  of  the  United  States  is  invoked,  it  is  essential 
to  the  exercise  of  the  jurisdiction  that  there  should  be  a 
"case"  before  the  court,  that  is,  a  subject-matter  for 
judicial  determination  contested  by  competent  parties.20 
The  courts,  therefore,  will  not  give  judgment  upon 
"moot"  questions,  or  abstract  propositions.21  If  it 
appear  from  the  record,  or  be  proven  aliunde,  that  a  judg- 
ment brought  up  for  review  has  been  satisfied,  the  appeal 
must  be  dismissed.22  It  is  also  essential  that  the  question 
for  decision  be  judicial  in  character,  for  the  courts  cannot 
decide  political  questions,  such  as  whether  or  not  the 
people  of  a  state  have  altered  their  form  of  government 
by  abolishing  an  old  government  and  establishing  a  new 
one  in  its  place,23  nor  whether  or  not,  in  a  foreign  country, 
a  new  government  has  been  established,24  nor  whether  or 
not  the  United  States  has  sovereignty  over  a  territory,25 
nor  can  the  courts  by  injunction  restrain  a  state  from  the 
forcible  exercise  of  legislative  power  over  an  Indian  tribe 
"asserting  their  independence,  the  right  to  which  the  state 

^Osborn  v.  Bank  of  the  U.  S.,  9  Wheat.  738;  Cohens  v.  Virginia,  6  id. 
379;  Upshur  County  v.  Rich,  135  U.  S.  467;  L.  A.  S.  M.  Co.  v.  U.  S.,  175 
id.  423;  Lampasas  v.  Bell,  180  id.  276. 

21  Mills  v.  Green,  159  U.  S.  651;  N.  O.  P.  Inspectors  v.  Glover,  160  id. 
170;  Tyler  v.  Judges  of  Court  of  Registration,  179  id.  404;  Codlin  v.  Kohl- 
hausen,  181  id.  151 ;  Turpin  v.  Lemon,  187  id.  51 ;  Chadwick  v.  Kelley,  ibid. 
540;  Smith  v.  Indiana,  191  id.  138. 

22  A.  B.  Co.  v.  Kansas,  193  U.  S.  49. 
28  Luther  v.  Borden,  7  How.  1,  147. 

24  Rose  v.  Himely,  4  Cr.  241,  272;   Gelston  v.  Hoyt,  3  Wheat.  246,  324; 
Kennett  v.  Chambers,  14  How.  38 ;  Terlinden  v.  Ames,  184  id.  270. 

25  Jones  v.  U.  S.,  137  U.  S.  202;  In  re  Cooper,  143  TJ.  S.  472,  503;  cf. 
U.  S.  v.  Texas,  ibid.  621. 


THE   NECESSITY   OF   A   JUDICIAL   "CASE."  229 

denies,"26  nor  enjoin  the  executive  department  of  the  gov- 
ernment of  the  United  States  from  carrying  into  effect 
acts  of  Congress  alleged  to  be  unconstitutional.27  Such 
questions  can  only  be  decided  by  the  political  power, ' l  and 
when  that  power  has  decided,  the  courts  are  bound  to  take 
notice  of  its  decision  and  to  follow  it. ' ' 28  Upon  this  prin- 
ciple, the  recognition  by  Congress  and  the  executive  of  the 
state  governments  of  the  then  lately  rebellious  states  as 
reconstructed  after  the  suppression  of  the  rebellion  was 
held  to  be  binding  upon  the  judicial  department  of  the 
government.29  But  the  courts  may  compel  the  perform- 
ance of  a  ministerial  and  non-discretionary  duty  by  an 
executive  officer,  as,  for  instance,  the  delivery  of  a  signed 
and  sealed  commission  to  an  officer  who  has  been  ap- 
pointed, nominated,  and  confirmed,30  or  the  crediting  to  a 
government  creditor  of  a  sum  of  money  found  by  the 
Treasury  to  be  due  under  the  express  terms  of  an  act  of 
Congress.31 

26  The  Cherokee  Nation  v.  Georgia,  5  Pet.  1,  20. 

27  Mississippi  v.  Johnson,  4  Wall.  475 ;  Georgia  v.  Stanton,  6  id.  50.     See, 
however,  dicta  in  Cruickshank  v.  Bidwell,  176  U.  S.  73,  and  cases  there  cited. 

28  Luther  v.  Borden,  7  How.  1. 

29  Texas  v.  White,  7  Wall.  700. 

30  Marbury  v.  Madison,  1  Or.  137. 

31  Kendall  v.  U.  S.,  12  Pet.  521.     See  also  Noble  v.  U.  E.  L.  E.,  147  IT.  S. 
165;  Decatur  v.  Paulding,  14  Pet.  497;   U.  S.  v.  Schurz,  102  U.  S.  378; 
Butterworth  v.  Hoe,  112  id.  50;  U.  S.  v.  Black,  128  id.  40,  50;  U.  S.  v. 
Windom,  137  id.  636;  U.  S.  v.  Blaine,  139  id.  306;  New  Orleans  v.  Paine, 
147  id.  261;  Eoberts  v.  17.  S.,  176  id.  221;  De  Lima  v.  Bidwell,  182  id.  1; 
Fok  Yung  Yo  v.  U.  S.,  185  id.  296;  A.  S.  of  M.  H.  v.  McAnnulty,  187  id.  94. 

In  the  courts  of  the  United  States,  laws  of  foreign  countries  may  be 
proved  as  facts,  C.  &  A.  E.  v.  W.  F.  Co.,  119  U.  S.  615,  622;  L.  &  G.  W.  S. 
Co.  v.  P.  I.  Co.,  129  id.  397,  445 ;  Talbot  v.  Seeman,  1  Cr.  1 ;  Church  v.  Hub- 
bart,  2  id.  187 ;  Strother  v.  Lucas,  6  Pet.  763 ;  Armstrong  v.  Lear,  8  id.  52,  by 
official  publications  thereof,  satisfactorily  certified,  Ennis  v.  Smith,  14  How. 
400,  or  by  written  copies  thereof  attested  by  the  oath  of  a  United  States 
consul,  Church  v.  Hubbart,  2  Cr.  187.  Unwritten  foreign  laws  may  be 
proved  by  the  testimony  of  experts,  Livingston  v.  M.  I.  Co.,  6  Cr.  274 ;  Ennis 
v.  Smith,  14  How.  400;  Pierce  v.  Indseth,  106  U.  S.  546.  The  courts  of  the 
United  States  take  notice,  without  proof,  of  the  laws  of  the  several  states, 
C.  &  A.  E.  v.  W.  F.  Co.,  119  U.  S.  615,  622 ;  Owings  v.  Hull,  9  Pet.  607,  and 


230  THE    JUDICIAL    POWEK. 

The  federal  judiciary. 

104.  The  courts  of  the  United  States  have  contributed 
to  the  history  of  the  country  a  chapter  which  every  Ameri- 
can citizen  can  read  with  pride.  The  dignity  of  the 
judicial  office,  its  security  of  tenure,  and  its  consequent 
independence  of  political  dictation  and  control,  have  so 
far  compensated  for  the  inadequacy  of  the  salaries 
that  lawyers  who  might  reasonably  look  forward  to  lucra- 
tive practice  have,  in  many  instances,  been  induced  to 
accept  seats  upon  the  federal  bench.  The  judges  have 
been,  with  scarcely  an  exception,  learned  and  able  lawyers, 
and  their  personal  characters  have  given  weight  to  their 
judgments.  They  have  performed  their  judicial  duties 
with  courage,  faithfulness,  and  intelligence.  They  have, 
in  general,  administered  with  firmness,  and  with  tact,  the 
extensive  jurisdiction  of  their  courts.  All  that  is  to  be 
said  of  the  federal  judges,  in  general,  can  be  said,  with 
even  greater  force,  of  the  successive  Chief  Justices  and 
Justices  of  the  Supreme  Court  of  the  United  States.  Sov- 
ereign states,  vast  aggregations  of  capital,  and  the  mass 
of  the  people  have  respectfully  bowed  to  the  judgments  of 
that  tribunal.  No  fair-minded  man  has  ever  doubted, 
however  much  he  might  be  disposed  to  criticise  the  result 
in  any  particular  cause,  that  the  court  in  arriving  at  its 
conclusions  had  given  full  consideration  to  every  fact  and 
every  argument  and  had  earnestly  endeavoured  to  do  jus- 
tice. The  work  of  the  court  which  has  attracted  most 
attention  has  been  in  its  interpretation  of  the  Constitu- 
tion. In  the  performance  of  that  duty  the  court  has  had 

of  the  laws  governing  territory  subsequently  acquired  by  the  United  States, 
U.  S.  v.  Perot,  98  U.  S.  428;  Fremont  v.  U.  S.,  17  How.  542,  557.  But  the 
Supreme  Court  of  the  United  States,  in  the  exercise  of  its  appellate  juris- 
diction, does  not  take  judicial  notice  of  the  laws  of  foreign  countries,  nor  of 
the  laws  of  the  several  states  of  the  United  States,  if  such  laws  have  not 
been  found  as  facts  in  the  courts  of  the  first  instance,  Hanley  v.  Donoghue, 
116  U.  S.  1;  C.  &  A.  E.  v.  W.  F.  Co.,  119  U.  S.  615,  623. 


THE    FEDERAL    SUPREMACY.  231 

to  apply  an  instrument  made  at  the  birth  of  the  govern- 
ment to  the  changing  conditions  of  the  nation's  develop- 
ment. This  has  been  done  in  all  cases  with  judicial  de- 
liberation, and,  in  almost  all  cases,  with  the  wisdom  of 
statesmen. 

The  court,  in  all  but  two  instances,  has  wisely  held  itself 
aloof  from  political  controversies  whose  consideration  it 
was  possible  to  avoid.  In  1803,32  judges  who  were  Fed- 
eralists united  in  an  opinion  which,  if  it  could  have  been 
enforced  by  a  judgment,  would  have  deprived  the  Demo- 
cratic party  of  those  spoils  of  office  which  that  party  re- 
garded as  the  fruits  of  its  triumph  over  the  Federalist 
party.  In  1857,33  judges  who  were  Democrats  thought 
they  had  established  the  indefeasible  right  of  slavery  to 
occupy  the  territories  of  the  United  States.  The  cases 
were  alike  in  that  in  each  instance  the  court,  having  proved 
to  its  satisfaction  that  it  had  no  jurisdiction  over  the 
subject-matter  of  decision,  proceeded  to  a  judicial  de- 
termination upon  the  merits  of  the  controversy;  and  in 
each  instance  the  country  revolted  against  the  attempted 
judicial  usurpation  of  political  functions. 

The  greatest  service  which  the  Supreme  Court  of  the 
United  States  has  rendered  to  the  country  is  that  through- 
out our  history  it  has  been  an  object  lesson  of  the  suprem- 
acy of  law.  It  is  impossible  to  overstate  the  vital  impor- 
tance to  the  republic  of  the  teaching  of  this  lesson,  a  lesson 
so  hard  for  a  democracy  to  learn,  and  so  essential  to  the 
maintenance  of  free  institutions. 

The  federal  supremacy. 

105.  The  law  administered  in  the  courts  of  the  United 
States  is  found  in  the  Constitution,  in  acts  of  Congress, 

32  Marbury  v.  Madison,  1  Or.  137. 

33  Dred  Scott  v.  Sandf  ord,  19  How.  393. 


232  THE    JUDICIAL   POWER. 

in  treaties  made  by  the  United  States,  and  in  the  judg- 
ments of  the  Supreme  Court. 

Section  2  of  Article  VI  of  the  Constitution  declares,  that 
4  *  this  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  state  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding/' 

The  Constitution  is  the  Constitution  as  orginally  rati- 
fied, and  as  subsequently  amended  in  the  manner  and 
under  the  restrictions  contained  in  the  Constitution,  and 
as  construed  by  the  judicial  department  of  the  government 
so  far  as  regards  all  that  may  properly  become  a  subject- 
matter  of  judicial  determination.  The  validity  of  an  act 
of  Congress  is  dependent  upon  its  conformity  to  the  Con- 
stitution.34 The  validity  of  an  act  of  a  state  legislature 
is  dependent  upon  its  conformity  to  the  Constitution  of 
the  United  States  and  also  upon  its  conformity  to  the 
constitution  of  its  state. 

But  an  act  of  legislation  will  not,  on  slight  implication, 
or  vague  conjecture,  be  judicially  determined  to  be  in  con- 
flict with  the  Constitution,  for  the  presumption  is  always 
in  favour  of  the  constitutionality  of  a  law.35  Statutes, 
which  are  constitutional  in  part  only,  will  be  upheld  by 
the  court  so  far  as  they  are  not  in  conflict  with  the  Con- 
stition,  provided  that  their  constitutional,  and  their  uncon- 

34Marbury  v.  Madison,  1  Cr.  137;  Norton  v.  Shelby  County,  118  U.  S.  425. 

35  Fletcher  v.  Peck,  6  Cr.  87;  Legal  Tender  Cases,  12  Wall.  531;  U.  S.  v. 
Harris,  106  U.  S.  629;  U.  S.  v.  G.  E.  Ey.,  160  id.  668;  Brown  v.  Walker, 
161  id.  591;  Mcol  v.  Ames,  173  id.  509;  H.  &  T.  C.  E.  v.  Texas,  177  id.  66; 
Fairbank  v.  U.  S.,  181  id.  283;  Booth  v.  Illinois,  184  id.  425;  Eeid  v.  Colo- 
rado, 187  id.  137;  The  Japanese  Immigrant  Case,  189  id.  86,  101;  Buttfield 
v.  Stranahan,  192  id.  470. 


CONSTITUTIONAL,   AND   STATUTOBY    CONSTRUCTION.      233 

stitutional,  parts  be  sever  able ; 36  but  when  the  unconsti- 
tutional parts  of  such  a  statute  are  so  connected  with  its 
general  scope,  that,  should  they  be  stricken  out,  effect  can- 
not be  given  to  the  legislative  intent,  the  other  provisions 
of  the  statute  must  fall  with  them.37 

Constitutional  and  statutory  construction. 

106.  The  colonial  lawyers  were  familiar  with  the  idea 
of  a  judicial  determination  of  the  invalidity  of  an  act  of 
legislation  by  reason  of  its  contravention  of  an  organic 
law,  for  they  not  infrequently  had  their  attention  called 
to  deliverances  by  the  Privy  Council  in  England  holding 
invalid  acts  of  colonial  legislatures  for  the  want  of  con- 
formity to  colonial  charters,  or  to  English  statutes.  It 
is  therefore  not  surprising  that  there  are  dicta  and  judg- 
ments of  colonial  courts  recognizing  this  principle.38 

Alexander  Hamilton,39  after  saying  that  the  independ- 
ence of  the  courts  is  essential  in  a  country  where  the  Con- 
stitution limits  the  power  of  the  legislatures  by  specific  ex- 
ceptions therefrom,  adds  that  such  "limitations  .  .  .  can 
be  preserved  in  practice  in  no  other  way  than  through  the 
medium  of  courts  of  justice  whose  duty  it  must  be  to  de- 
clare all  acts  contrary  to  the  manifest  tenor  of  the  Consti- 
tution void.  .  .  .  The  Constitution  ought  to  be  preferred 
to  the  statute,  the  intention  of  the  people  to  the  intention 

36  Packet  Co.  v.  Keokuk,  95  U.  S.  80;  Pollock  v.  F.  L.  &  T.  Co.,  158  id. 
601 ;  cf.  Presser  v.  Illinois,  116  id.  252. 

87  Trade-Mark  Cases,  100  U.  S.  82 ;  Allen  v.  Louisiana,  103  id.  80 ;  U.  S. 
v.  Harris,  106  id.  629;  Virginia  Coupon  Cases,  114  id.  269;   Spraigue  v. 
Thompson,  118  id.  90 ;  Baldwin  v.  Franks,  120  id.  678 ;  Pollock  v.  F.  L.  &  T. 
Co.,  158  id.  601;  cf.  Connolly  v.  U.  S.  P.  Co.,  184  id.  540. 

88  Commonwealth  v.  Caton,  4  Call,  Virginia  Eeports,  5,  per  Wythe,  J. ; 
Holmes  v.  Walton,  cited  in  State  v.  Parkhurst,  9  N.  J.  L.  427,  444;  Trevett 
v.  Weeden,  2  Arnold's  History  of  Ehode  Island,  525;  Bayard  v.  Singleton, 
1  Martin,  North  Carolina  Eeports,  42;  Bowman  v.  Middleton,  1  Bay,  South 
Carolina  Eeports,  252;  Cooley's  Constitutional  Limitations,  55. 

39 Federalist,  No.  78,  9  Hamilton's  Works,  Lodge's  Edition,  pp.  482,  484. 


234  THE    JUDICIAL,    POWEK. 

of  their  agents.  .  .  .  The  prior  charter  of  the  superior 
ought  to  be  preferred  to  the  subsequent  acts  of  an  inferior 
and  subordinate  authority,  and  .  .  .  accordingly  when- 
ever a  particular  statute  contravenes  the  Constitution  it 
will  be  the  duty  of  the  judicial  tribunals  to  adhere  to  the 
latter  and  disregard  the  former."  This  reasoning  has 
been  adopted  and  uniformly  followed  by  the  court.40 

The  most  important  function  of  the  courts  is  that  of 
construing  the  Constitution,  and  that  construction  is 
authoritatively  and  finally,  so  far  as  regards  subject-mat- 
ters of  judicial  determination,  made  by  the  Supreme  Court 
of  the  United  States.  The  rules,  which  are  applied  by  the 
court  in  the  construction  of  the  Constitution,  are  few  and 
simple.  ( 1 ) .  The  construction  is  neither  lax  nor  rigorous, 
but  such  as  to  effectuate  the  purpose  of  the  instrument  as 
"an  establishment  of  a  frame  of  government  and  a  dec- 
laration of  that  government's  fundamental  principles  in- 
tended to  endure  for  ages  and  to  be  adapted  to  the  various 
crises  of  human  affairs."41  (2).  The  antecedent  history 
of  the  country  and  the  state  of  the  public  affairs  at  the 
time  of  the  adoption  of  the  Constitution  are  considered, 
in  order  that  the  old  law,  the  mischief,  and  the  remedy 
may  have  their  relative  weight.42  (3).  A  contempora- 
neous legislative  exposition  acquiesced  in  for  a  long  term 
of  years  fixes  the  construction.43  (4) .  The  words  are  read 
in  their  natural  sense,44  departing  from  and  varying  by 
construction  the  natural  meaning  of  the  words  only  where 

*°Marbury  v.  Madison,  1  Cr.  137.     See  also  the  language  of  Taney,  C.  J., 
quoted  in  the  appendix  to  117  U.  S. 

41  Juilliard  v.  Greenman,  110  U.  S.  421;  Gibbons  v.  Ogden,  9  Wheat.  1; 
Martin  i?.  Hunter 's  Lessee,  1  Wheat.  304. 

42  Ehode  Island  v.  Massachusetts,  12  Pet.  657 ;  Maxwell  v.  Dow,  176  U.  S. 
581,  602. 

43  Stuart  v.  Laird,  1  Cr.  299 ;  Briscoe  v.  The  Bank  of  the  Commonwealth  of 
Kentucky,  11  Pet.  257,  317;  C.  M.  Co.  v.  Ferguson,  113  U.  S.  727.     See  also 
Downes  v.  Bidwell,  182  id.  244. 

44  Gibbons  v.  Ogden,  9  Wheat.  1. 


CONSTITUTIONAL   AND   STATUTORY   JURISDICTION.        235 

different  clauses  of  the  instrument  bear  upon  each  other 
and  would  conflict,  unless  the  words  were  construed  other- 
wise than  by  their  natural  and  common  import.45  (5). 
An  exception  from  a  power  which  is  granted  in  express 
terms  marks  the  extent  of  the  power  and  shows  that  the 
power  necessarily  includes  other  cases  which  come  within 
the  terms  of  the  grant  and  which  might  have  been,  but 
were  not,  specifically  excepted.46  (6).  When  a  term  of 
the  common  law  is  used,  its  common-law  meaning  is 
adopted  with  it.47  (7).  The  Federalist  is  not,  of  course, 

^Sturges  v.  Crowninshield,  4  Wheat.  122.  Story,  J.,  said,  in  Prigg  <y. 
Penna.,  16  Pet.  610,  "  Perhaps,  the  safest  rule  of  interpretation  after  all 
will  be  found  to  be  to  look  to  the  nature  and  objects  of  the  particular 
powers,  duties,  and  rights,  with  all  the  lights  and  aids  of  contemporary  his- 
tory; and  to  give  to  the  words  of  each  just  such  operation  and  force,  con- 
sistent with  their  legitimate  meaning,  as  may  fairly  secure  and  attain  the 
ends  proposed." 

^Gibbons  v.  Ogden,  9  Wheat.  1;  Ehode  Island  v.  Massachusetts,  12  Pet. 
657;  Brown  -u.  Maryland,  12  Wheat.  438. 

47  In  Schick  v.  U.  S.,  195  U.  S.  65,  Brewer,  J.,  said,  in  reference  to  a  clause 
of  Article  III,  ' '  It  must  be  read  in  the  light  of  the  common  law.  '  That, ' 
said  Mr.  Justice  Bradley,  in  Moore  v.  U.  S.,  91  II.  S.  270,  274,  referring 
to  the  common  law,  'is  the  system  from  which  our  judicial  ideas  and  legal 
definitions  are  derived.  The  language  of  the  Constitution  and  of  many  acts 
of  Congress  could  not  be  understood  without  reference  to  the  common  law. ' 
Again,  in  Smith  v.  Alabama,  124  U.  S.  465,  478,  is  this  declaration  by  Mr. 
Justice  Matthews:  'The  interpretation  of  the  Constitution  of  the  United 
States  is  necessarily  influenced  by  the  fact  that  its  provisions  are  framed 
in  the  language  of  the  English  common  law,  and  are  to  be  read  in  the  light 
of  its  history. '  In  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649,  654,  Mr.  Justice 
Gray  used  this  language:  'In  this,  as  in  other  respects,  it  must  be  inter- 
preted in  the  light  of  the  common  law,  the  principles  and  history  of  which 
were  familiarly  known  to  the  framers  of  the  Constitution. '  '  Duncan,  J., 
said  in  Lyle  v.  Eichards,  9  S.  &  E.  356,  "In  American  legislation,  when  a 
term  of  the  common  law  is  adopted,  the  common-law  meaning  is  adopted 
with  it. ' '  Marshall,  C.  J.,  said  in  U.  S.  v.  Burr,  4  Cr.  470,  in  commenting 
on  the  phrase  "levying  war"  in  the  constitutional  definition  of  treason, 
1 '  It  is  a  technical  term ;  it  is  used  in  a  very  old  statute  in  that  country,  whose 
language  is  our  language,  and  whose  laws  form  the  substratum  of  our  laws. 
It  is  hardly  conceivable  that  the  term  was  not  employed  by  the  framers  of 
our  Constitution  in  the  sense  which  has  been  affixed  to  it  by  those  from 
whom  we  borrowed  it.  So  far  as  the  meaning  of  any  terms,  particularly 
terms  of  art,  is  completely  ascertained,  those  by  whom  they  are  employed 
must  be  considered  as  employing  them  in  that  ascertained  meaning,  unless 
the  contrary  be  proved  by  the  context. ' ' 
16 


236  THE   JUDICIAL   POWER. 

of  binding  authority  upon  the  Supreme  Court  with  regard 
to  the  judicial  construction  of  the  Constitution,  but  as 
Marshall,  C.  J.,  said  in  Cohens  v.  Virginia,48  the  *  '  opinion 
of  the  Federalist  has  always  been  considered  as  of  great 
authority.  It  is  a  complete  commentary  on  our  Constitu- 
tion, and  is  appealed  to  by  all  parties  in  the  questions  to 
which  that  instrument  has  given  birth.  Its  intrinsic  merit 
entitles  it  to  this  high  rank,  and  the  part  two  of  its  authors 
performed  in  framing  the  Constitution  put  it  very  much 
in  their  power  to  explain  the  views  with  which  it  was 
framed. "  (8).  The  reported  proceedings  of  the  conven- 
tion which  framed  the  Constitution,  and  of  the  several 
state  conventions  which  ratified  it,  though  frequently  re- 
ferred to  in  the  discussions  of  questions  of  constitutional 
construction,  are  not  of  binding  authority.  The  views  ex- 
pressed in  the  debates  are  merely  the  views  of  the  indi- 
vidual speakers,  and  do  not  necessarily  express  the  view 
of  the  subject  which  induced  the  federal  convention  to 
insert  the  particular  provision  in  the  Constitution  as 
framed  by  them,  or  which  led  the  convention  of  any  one 
state  to  ratify  the  Constitution.49  The  votes  of  the  con- 
vention on  the  details  of  the  Constitution  are  of  no  greater 
importance,  for  an  affirmative  vote  approving  a  particular 
section  of  the  Constitution,  throws  no  light  on  the  mean- 
ing of  the  words  of  the  section ;  and  a  negative  vote  reject- 
ing a  proposed  constitutional  provision  may  with  equal 
propriety  be  regarded  as  an  expression  of  opinion  to  the 
effect  that  the  proposed  provision  is  unnecessary  because 
adequately  supplied  by  other  provisions  of  the  Constitu- 
tion, or  as  a  refusal  to  adopt  the  particular  provision  be- 
cause in  the  opinion  of  the  convention  such  a  provision 
ought  not  to  be  inserted  in  the  Constitution.  It  must  be 

48  6  Wheat.  418.     See  Sir  Henry  Maine 's  ' '  Popular  Government, ' '  p.  202, 
for  references  to  foreign  eulogies  of  the  Federalist. 

49  U.  S.  v.  U.  P.  R.,  91  U.  S.  72,  79. 


JUDGMENTS   OF    COURTS.  237 

remembered  that  the  Constitution  derives  its  whole  force 
and  authority  from  its  ratification  by  the  people,50  and 
whenever  it  becomes  necessary  to  determine  the  meaning 
of  any  clause  in  the  Constitution,  the  real  question  for  de- 
cision is,  not  what  did  the  federal  convention,  or  any  mem- 
ber thereof,  understand  that  clause  to  mean  when  that 
convention  framed  the  Constitution,  nor  what  did  the 
members  of  any  particular  state  convention  understand 
that  clause  to  mean  when  their  convention  ratified  the 
Constitution,  but  what  did  that  clause  really  mean  as  rati- 
fied by  all  the  conventions,  and  that  meaning  can  only  be 
determined  by  the  application  of  the  established  rules  of 
judicial  construction.51 

The  meaning  of  a  statute  is  determined  by  the  applica- 
tion of  rules  of  construction,  which  are  substantially  the 
same  as  the  rules  of  constitutional  construction,  and 
whose  object  is  simply  to  determine  the  legislative  intent, 
which  is  the  natural  and  reasonable  effect  of  the  words 
used.52 

Judgments  of  courts. 

107.  A  judgment  of  a  court  is  an  application  of  a 
rule  of  law  to  the  facts  of  a  particular  case,  and  its  value 
as  an  authority  is  dependent  upon  the  extent  and  finality 
of  the  jurisdiction  of  the  court  and  upon  an  ascertainment 
of  the  facts  as  presented  to  the  mind  of  the  court  and  a 
deduction  of  the  rule  of  law  determining  the  decision  on 
those  facts.53  The  opinion  of  any  court  or  judge  upon  a 

50  McCulloch  v.  Maryland,  4  Wheat.  316,  404. 

51  The  view  as  stated  in  the  text  was  forcibly  put  by  R.  C.  McMurtrie, 
Esq.,  in  his  ' ( Observations  on  Mr.  George  Bancroft's  Plea  for  the  Constitu- 
tion, "  p.  8  et  seq.     See  also  Maxwell  v.  Dow,  176  U.  S.  581,  601. 

52  Henderson  v.  N.  Y.,  92  U.  S.  259,  260  ;  Soon  Hing  v.  Crowley,  113  id. 
703,  710;  Mugler  v.  Kansas,  123  id.  623,  661;  Minnesota  v.  Barber,  136  id. 
313,  320. 

MKnatchbull  v.  Hallett,  13  Ch.  Div.  712;  Ginesi  v.  Cooper,  14  id.  601; 
Ogden  v.  Saunders,  12  Wheat.  333. 


238  THE   JUDICIAL   POWER. 

question  whose  determination  is  not  essential  to  the  de- 
cision upon  the  facts  of  the  cause  is  only  obiter  dictum 
and,  although  entitled  to  be  received  with  great  respect, 
it  is  not  to  be  regarded  as  an  authoritative  precedent.  The 
opinions  of  the  judges  are,  therefore,  of  value  only  in  so 
far  as  they  ascertain  the  facts  and  deduce  the  rule  whose 
application  decides  the  cause.  It  would  be  well  if  dis- 
senting opinions  were  not  published,  and  if  the  fact  of 
any  dissent  were  not  recorded,  for  any  dissent  necessarily 
weakens  the  force  of  the  judgment  as  a  precedent. 

Treaties. 

108.  Treaties,  when  duly  ratified,  are  of  inferior  author- 
ity to  the  Constitution,54  but  they  are  superior  in  authority 
to  state  legislation.55  Where  there  is  a  repugnancy  be- 
tween a  treaty  and  an  act  of  Congress  that  which  is  of 
later  date  will  prevail.56  Where  a  treaty  declares  the 
rights  and  privileges  which  the  citizens  or  subjects  of  a 
foreign  nation  may  enjoy  in  the  United  States  it,  in  gen- 
eral, operates  by  its  own  force,  and  does  not  require  the 
aid  of  any  congressional  enactment.57  While,  as  respects 
the  rights  and  obligations  of  the  contracting  governments, 
a  treaty  is  to  be  regarded  as  concluded  and  binding  from 
the  date  of  its  signature,58  yet  as  respects  the  effects  of  the 

"Geofroy  v.  Eiggs,  133  IT.  S.  258,  267;  Thomas  v.  Gay,  169  id.  264,  271. 

55  U.  S.  v.  Forty-three  Gallons  of  Whiskey,  93  IT.  S.  188;  Hauenstein  v. 
Lynham,  100  id.  483;  Butler  v.  B.  &  S.  S.  Co.,  130  id.  527;  G.,  C.  &  S.  F. 
Ey.  v.  Hefley,  158  id.  98;  Ohio  v.  Thomas,  173  id.  276;  Boske  v.  Comingore, 
177  id.  459;  Easton  v.  Iowa,  188  id.  220. 

66  U.  S.  v.  Schooner  Peggy,  1  Cr.  103;  Foster  v.  Neilson,  2  Pet.  253,  314; 
The  Cherokee  Tobacco,  11  Wall.  616;  Head  Money  Cases,  112  U.  S. 
580 ;  Whitney  v.  Eobertson,  124  id.  190 ;  Botiller  v.  Dominguez,  130  id.  238 ; 
The  Chinese  Exclusion  Case,  ibid.  581;  Homer  v.  U.  S.,  143  id.  570;  Fong 
Yue  Ting  v.  U.  S.,  149  id.  698 ;  Wong  Wing  v.  U.  S.,  163  id.  228 ;  De  Lima 
v.  Bidwell,  182  id.  1.  See  also  U.  S.  v.  Lee  Yen  Tai,  185  id.  213. 

57  Chirac  v.  Chirac,  2  Wheat.  259 ;  Hughes  v.  Edwards,  9  id.  489,  496 ;  Car- 
neal  v.  Banks,  10  id.  181;  Hauenstein  v.  Lynham,  100  U.  S.  483.  But  see 
Baldwin  v.  Franks,  120  U.  S.  678. 

M  Dana 's  Wheaton  'a  International  Law,  36. 


LAW   ADMINISTEKED   IN   FEDERAL   COURTS,  239 

treaty  on  the  rights  of  citizens  of  the  United  States  vested 
before  the  ratification  of  the  treaty  but  subsequently  to  its 
signature,  the  treaty  is  not  to  be  considered  as  a  part  of 
the  supreme  law  of  the  land  until  after  its  ratifications 
have  been  exchanged,  for  the  Senate  may  in  process  of 
ratification  amend  the  treaty,59  and  it  cannot  be  known, 
until  it  be  ratified,  what  it  may  command  or  prohibit.60 
Treaties  do  not,  unless  they  be  in  express  terms  retro- 
active, affect  rights  vested,  or  liabilities  incurred,  before 
their  ratification.61  The  abrogation  of  a  treaty  operates 
only  on  future  transactions,  leaving  unaffected  previously 
executed  transactions  and  vested  property  interests,  but 
not  personal  and  non-transferable  rights.62 

The  law  administered  in  the  federal  courts. 

109.  In  criminal  cases  the  jurisdiction  of  the  courts  of 
the  United  States  is  statutory  and  an  indictment  cannot 
be  tried  for  a  common-law  offense.  They,  therefore,  ad- 
minister on  the  criminal  side  only  that  jurisdiction  which 
is  granted  by  the  Constitution,  treaties,  and  statutes  of  the 
United  States.63 

In  civil  causes,  where  the  jurisdiction  of  the  court  de- 
pends on  the  character  of  the  cause,  as  raising  for  decision 
a  question  of  federal  law,  the  only  law  that  can  be  admin- 
istered therein  is  that  of  the  Constitution,  statutes,  and 
treaties  of  the  United  States.  But  in  causes  where  the 
jurisdiction  attaches  only  by  reason  of  the  diverse  citizen- 

59  Art.  II,  Section  2,  of  the  Constitution  requires  the  advice  and  consent  of 
the  Senate,  and  the  concurrence  of  two-thirds  of  the  Senators  present,  to  the 
making  of  any  treaty  by  the  President. 

60  U.  S.  v.  Arredondo,  6  Pet.  691,  749 ;  Haver  v.  Yaker,  9  Wall.  32. 

81  Prevost  v.  Greneaux,  19  How.  1 ;  Frederickson  v.  Louisiana,  23  id.  445. 

82  Chinese  Exclusion  Case,  130  U.  S.  581. 

63  U.  S.  v.  Hudson,  7  Cr.  32;  U.  S.  v.  Coolidge,  1  Wheat.  415 ;  Penna.  v. 
W.  &  B.  Bridge,  13  How.  519.  The  United  States  have  no  common  law 
Wheaton  v.  Peters,  8  Pet.  591;  Smith  v.  Alabama,  124  U.  S.  465,  478; 
W.  U.  T.  Co.  v.  C.  P.  Co.,  181  U.  S.  92,  101. 


240  THE    JUDICIAL,    POWER. 

ship  of  the  parties,  the  law  administered  ought  to  be  that 
of  the  state  within  whose  territory  the  court  of  the  first 
instance  sits,  excepting,  of  course,  in  those  causes  in  which 
the  lex  loci  contractus  differs  from  the  lex  fori,  and  the 
former  law  is  applicable.  The  only  reason  that  the  fram- 
ers  of  the  Constitution  could  have  had  for  opening  the 
courts  of  the  United  States  to  one  who  litigates  only  in 
right  of  diverse  citizenship  is  the  possibility  of  bias  or 
prejudice  against  him  in  the  state  court.  This  reason  for 
the  jurisdiction  was  recognized  by  the  Supreme  Court  in 
an  early  case,64  but  later  cases  adopt  a  broader  view, 
which  must  now  be  regarded  as  the  established  judicial 
theory  of  the  constitutional  intent.  If  a  citizen  of  one 
state  has  a  cause  of  action  against  a  citizen  of  another 
state,  and  he  brings  his  action  in  the  courts  of  that  other 
state  his  right  is  to  have  an  impartial  trial  and  to  have 
his  cause  decided  by  the  application  of  the  law  of  that 
state.  That  law  can  only  be  found  in  the  constitution  and 
statutes  of  the  state,  as  construed  by  the  state  court  of  last 
resort,  and  in  the  principles  of  the  common,  or  civil,  law,  as 
the  case  may  be,  as  recognized  by  the  judicial  decisions  of 
the  state  court  of  last  resort.  When  that  litigant  goes  into 
a  court  of  the  United  States  to  enforce  that  cause  of  action, 
the  change  of  forum  should  not  change  the  law  which  must 
be  applied  to  and  must  decide  the  cause.  Each  state  is  en- 
titled as  of  right  jus  dare  et  jus  dicere,  to  make  the  law  and 

64 Folk's  Lessee  v.  Wendell,  9  Or.  87.  Johnson,  J.,  said:  "The  sole  object 
for  which  jurisdiction  of  cases  between  citizens  of  different  states  is  vested 
in  the  courts  of  the  United  States  is  to  secure  to  all  the  administration  of 
justice  upon  the  same  principles  upon  which  it  is  administered  between  citi- 
zens of  the  same  state.  The  Court,  in  a  later  and  unanimous  judgment, 
speaking  by  Bradley,  J.,  said  (Burgess  v.  Seligman,  107  U.  S.  20,  34)  : 
' '  The  very  object  of  giving  to  the  national  courts  jurisdiction  to  ad- 
minister the  laws  of  the  states  in  controversies  between  citizens  of  different 
states  was  to  institute  independent  tribunals  which  it  might  be  supposed 
would  be  unaffected  by  local  prejudices  and  sectional  views."  This  broad 
statement  is  quoted  with  approval  in  the  most  recent  case,  G.  S.  F.  H. 
Co.  v.  Jones,  193  U.  S.  532,  544. 


LAW   ADMINISTEKED   IN    FEDEBAL    COURTS.  241 

to  declare  the  law,  as  to  all  subject-matters  of  legislative 
and  judicial  determination,  which  have  not  been  delegated 
by  the  Constitution  to  the  United  States ;  and  any  subject- 
matter  of  which  a  court  of  the  United  States  can  only  take 
jurisdiction  by  reason  of  the  diverse  citizenship  of  the 
parties  is  necessarily  a  subject-matter  as  to  which  the 
United  States  cannot  legislate,  and  over  which  it  ought  not 
to  exercise  judicial  jurisdiction  otherwise  than  by  apply- 
ing the  law  of  the  state.  It  is  is  true  that  the  federal 
tribunals  exercise  as  to  such  subject-matters  an  inde- 
pendent though  concurrent  jurisdiction,  but  it  does  not 
follow  that  the  federal  judges  should  be  at  liberty  to  ascer- 
tain and  declare  the  law  of  the  state  according  to  their  own 
judgment,  not  of  what  that  law  is,  but  of  what  that  law 
ought  to  be.  On  the  contrary,  the  law  of  the  state  like  the 
law  of  a  foreign  country  should  be  proven  and  found  as  a 
fact  by  the  federal  judges.  The  Judiciary  Act  of  1789 65 
declares  that  "the  laws  of  the  several  states,  except 
where  the  Constitution,  treaties,  or  statutes  of  the  United 
States  shall  otherwise  require  or  provide,  shall  be 
regarded  as  rules  of  decision  in  trials  at  common  law  in 
the  courts  of  the  United  States  in  cases  where  they  apply. ' ' 
This  statutory  requirement  ought  to  have  been  con- 
strued to  require  the  application  of  state  rules  of  law  as 
evidenced  by  state  constitutions,  statutes,  and  judgments 
of  state  courts  of  last  resort,  in  all  cases  where  the  juris- 
diction attaches  solely  by  reason  of  diverse  citizenship, 
but  the  court  has  held  otherwise,  and  it  is  settled  law,  that 
while  the  courts  of  the  United  States  will  accept  and  follow 
a  fixed  construction  by  the  judicial  department  of  a  state 
of  its  constitution  and  statutes,66  yet,  when  the  decisions 

66  Eev.  Stat.,  sec.  721. 

66  Webster  v.  Cooper,  14  How.  488;  Jackson  v.  Chew,  12  Wheat.  153,  167; 
Townsend  v.  Todd,  91  U.  S.  452;  H.  F.  I.  Co.  v.  C.,  M.  &  St.  P.  By.,  175  id. 
91,  100 ;  Dooley  v.  Pease,  180  id.  126. 


242  THE    JUDICIAL   POWEK. 

of  the  state's  court  of  last  resort  are  not  consistent  the 
United  States  courts  do  not  feel  bound  to  follow  the  last 
decision ; 67  nor  will  the  federal  courts  follow  a  state  de- 
cision rendered  after  the  cause  of  action  has  accrued. 

Upon  questions  of  general  commercial  law,68  and  ques- 
tions of  real  property  law  depending  upon  general  prin- 
ciples of  law,69  and  in  actions  upon  contracts  or  upon 
questions  of  "general  jurisprudence  of  national  or  uni- 
versal application "  70  the  court  will  determine  the  law  for 
itself  and  it  will  not  follow  state  decisions  which,  in  the 
judgment  of  the  court,  do  not  lay  down  the  law  as  the 
federal  courts  hold  that  it  ought  to  be  laid  down. 

The  fundamental  objection  to  this  rule  of  the  court  is 
that,  as  Congress  cannot  under  the  Constitution  legislate 
on  any  other  than  a  federal  subject-matter,  the  enforce- 
ment by  the  federal  court,  in  controversies  as  to  contracts, 
or  commercial  obligations,  or  title  to  real  property,  of  a  law 
different  from  the  state  law,  as  formulated  in  its  acts  of 
legislation  and  in  the  judgments  of  its  courts,  is  nothing 
else  than  the  establishment  and  enforcement  of  a  body  of 
judge-made  law  with  no  statutory  basis,  and  without  possi- 
bility of  legislative  amendment.71 

In  causes  of  civil  cognizance,  where  the  federal  court  has 
acquired  original  jurisdiction  under  the  Constitution  and 
laws  of  the  United  States,  it  may  protect  rights  and  admin- 


67  Pease  v.  Peck,  18  How.  595 ;  Cross  v.  Allen,  141  U.  S.  528 ;  Burgess  v. 
Seligman,  107  id.  20,  33;  Carroll  County  v.  Smith,  111  id.  556;  S.  T.  Co. 
v.  B.  E.  N.  Bank,  187  id.  211. 

68  Swift  v.  Tyson,  16    Pet.  1. 

69  Town  of  Venice  v.  Murdock,  92  U.  S.  494. 

70  Gelpcke  v.  Dubuque,  1  Wall.  175 ;  O.  L.  &  T.  Co.  v.  Debolt,  16  How.  416, 
432;  E.  Co.  v.  Lockwood,  17  WaU.  357;  Gates  v.  Nat.  Bank,  100  U.  S.  239; 
E.  Co.  v.  Nat.  Bank,  102  id.  14,  30,  31;  Myrick  v.  M.  C.  E.,  107  id.  102,  109; 
Pana  v.  Bowler,  ibid.  529;  Bolles  v.  Brimfield,  120  id.  759;  Clark  v.  Bever, 
139  id.  96. 

71  This  subject  is  ably  discussed  in  Mr.  George  Wharton  Pepper's  brilliant 
essay  upon  ' '  The  Borderland  of  Federal  and  State  Decisions, ' '  1887. 


COURTS    MARTIAL   AND    IMPEACHMENTS.  243 

ister  remedies  not  only  under  the  Constitution,  laws,  and 
treaties  of  the  United  States,  but  also  under  the  common 
law,  as  adopted  by  the  state  within  which  the  court  sits,72 
the  principles  of  equitable  jurisprudence,  "as  distin- 
guished and  defined  in  that  country  from  whence  we  derive 
our  knowledge  of  those  principles, ' ' 73  and  the  statutes  of 
the  state.74 

In  admiralty  the  maritime  law  is  administered,  "with 
such  amendments  and  modifications  as  Congress  may  from 
time  to  time  have  adopted. ' ' 75 

Courts  martial  and  impeachments. 

110.  The  judicial  jurisdiction  of  the  United  States, 
except  as  regards  offenses  of  soldiers  and  sailors  against 
the  Articles  of  War,  and  crimes  punishable  by  impeach- 
ment, can  only  be  exercised  by  courts  duly  constituted 
under  the  Constitution  and  the  laws.  Congress,  therefore, 
cannot  invest  courts  martial  or  military  commissions  with 
jurisdiction  to  try,  convict,  or  sentence  for  any  offense,  a 
citizen  not  being  a  resident  of  a  state  in  rebellion,  nor  a 
prisoner  of  war,  nor  in  the  military  or  naval  service  of  the 

"Parsons  v.  Bedford,  3  Pet.  433;  Wheaton  v.  Peters,  8  id.  591;  Parish 
v.  Ellis,  16  id.  451;  Ex  parte  Bollman  and  Swartwout,  4  Cr.  75;  Cross  v. 
Allen,  141  U.  S.  528;  Dooley  v.  Pease,  180  id.  126;  W.  U.  T.  Co.  v.  C.  P.  Co., 
181  id.  92;  cf.  Swift  v.  Tyson,  16  Pet.  1;  Bucher  v.  C.  E.,  125  U.  S.  555; 
L.  &  G.  W.  S.  Co.  v.  P.  I.  Co.,  129  id.  397,  443;  Clark  v.  Bever,  139  id.  96; 
T.  &  P.  Ey.  v.  Cox,  145  id.  593;  Ellenwood  v.  M.  C.  Co.,  158  id.  105.  See 
also  Pepper :  ' '  Borderland  of  Federal  and  State  Decisions. ' ' 

"Eobinson  v.  Campbell,  3  Wheat.  222;  Livingston  v.  Story,  9  Pet.  632; 
Pennsylvania  v.  W.  &  B.  Bridge  Co.,  13  How.  563;  Holland  v.  Challen,  110 
U.  S.  15 ;  Eidings  v.  Johnson,  128  id.  212 ;  Mississippi  Mills  v.  Cohn,  150  id. 
202;  Hollins  v.  B.  C.  &  I.  Co.,  ibid.  371;  cf.  Scott  v.  Neely,  140  id.  106. 

74  Edwards  v.  Elliott,  21  Wall.  532 ;  The  Lottawanna,  ibid.  558 ;  Ey.  Co.  v. 
Whitton,  13  id.  270;  Ex  parte  Gordon,  104  U.  S.  515;  Ex  parte  Ferry  Co., 
ibid.  519 ;  Case  v.  Kelly,  133  id.  21 ;  Turner  v.  Wilkes  County  Commissioners, 
173  id.  461;  H.  F.  I.  Co.  v.  C.,  M.  &  St.  P.  Ey.,  175  id.  91;  cf.  Friedlander 
v.  T.  &  P.  Ey.,  130  id.  416;  C.,  M.  &  St.  P.  Ey.  v.  Solan,  169  id.  133. 

75  In  re  Garnett,  141  U.  S.  1,  14;  supra,  sec.  93. 


244  THE    JUDICIAL    POWER. 

United  States.76  That  which  may  be  termed  the  extra- 
ordinary judicial  power  of  the  United  States  is  exercised 
only  by  courts  martial  and  in  the  trial  of  impeachments. 
Courts  martial  may  exercise  judicial  jurisdiction  with 
regard  to  offenses  against  the  Articles  of  War  by  soldiers, 
sailors,  and  militiamen  when  called  out  for  service.77 

The  relevant  provisions  of  the  Constitution,  as  to  im- 
peachments, are  that,  "the  House  of  Representatives 
shall  .  .  .  have  the  sole  power  of  impeachment ; "  78  "the 
Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or 
affirmation.  When  the  President  of  the  United  States  is 
tried,  the  Chief  Justice  shall  preside ;  and  no  person  shall 
be  convicted  without  the  concurrence  of  two-thirds  of  the 
members  present.  Judgment  in  cases  of  impeachment 
shall  not  extend  further  than  to  removal  from  office,  and 
disqualification  to  hold  and  enjoy  any  office  of  honour, 
trust,  or  profit  under  the  United  States;  but  the  party 
convicted  shall  nevertheless  be  liable  and  subject  to  in- 
dictment, trial,  judgment  and  punishment,  according  to 
law."79  "The  President,  Vice-President  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors. 9 ' 80  "  The 
President  shall  .  .  .  have  power  to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States,  except  in 
cases  of  impeachment. ' ' 81  "  The  trial  of  all  crimes,  except 

76  Ex  parte  Milligan,  4  Wall.  2. 

77  Wise  v.  Withers,  3  Cr.  331;  Houston  v.  Moore,  5  Wheat.  1;  Martin  v. 
Mott,  12  id.  19;  Dynes  v.  Hoover,  20  How.  65;  Ex  parte  Mason,  105  U.  S. 
696;  Keyes  v.  U.  S.,  109  id.  336;  Wales  v.  Whitney,  114  id.  564;  Johnson 
v.  Sayre,  158  id.  109. 

78  Art.  I,  Sec.  2. 

79  Art.  I,  Sec.  3. 

80  Art.  II,  Sec.  4. 

81  Art.  II,  Sec.  2. 


THE   IV   AMENDMENT.  245 

in  cases  of  impeachment,  shall  be  by  jury. " 82  ' '  No  bill  of 
attainder  or  ex  post  facto  law  shall  be  passed. ' '  83  The 
Supreme  Court  of  the  United  States  has  never  decided 
any  question  as  to  impeachment,  but  a  consideration  of 
the  constitutional  provisions  shows  clearly  that,  under 
them,  the  House  of  Representatives  is  the  prosecutor; 
any  civil  officer  of  the  United  States  may  be  the  defendant ; 
the  Senate  of  the  United  States  is  the  court,  its  members 
being  first  sworn  or  affirmed,  the  Chief  Justice  of  the  Su- 
preme Court  of  the  United  States  presiding  in  the  case  of  a 
trial  of  the  President,  and  a  concurrence  of  two-thirds  of 
the  members  present  being  necessary  to  a  conviction ;  the 
offenses  for  which  an  impeached  officer  may  be  tried 
being  "treason,  bribery,  or  other  high  crimes  and  mis- 
demeanors," as  defined  by  laws  of  the  United  States 
enacted  before  the  commission  of  the  offense ;  the  punish- 
ment extending  only  "to  removal  from  office  and  dis- 
qualification to  hold  and  enjoy  any  office  of  honour,  trust, 
or  profit  under  the  United  States, "  but  without  prejudice 
to  indictment,  trial,  and  conviction  at  law  for  the  same 
offense ;  and  a  presidential  pardon  not  being  pleadable  in 
bar  of  the  impeachment  nor  efficacious  in  satisfaction  of  a 
conviction  after  impeachment,  or  in  mitigation  of  the 
punishment. 

The  IV  Amendment. 

111.  The  exercise  of  judicial  power  by  the  United 
States  is,  in  some  respects,  limited  by  certain  other  of  the 
provisions  of  the  Constitution  and  its  Amendments.  In 
the  most  important  case  that  ever  came  before  the  Su- 
preme Court,84  it  was  held  that  neither  the  President,  nor 

82  Art.  Ill,  Sec.  2. 

83  Art.  I,  Sec.  9. 

84  Ex  parte  Milligan,  4  Wall.  2. 


246  THE   JUDICIAL   POWEK. 

the  Congress,  nor  the  Judicial  Department  can  deny  to  a 
citizen  any  one  of  the  safeguards  of  civil  liberty  incor- 
porated into  the  Constitution,  and  in  that  cause  a  citizen 
who  was  held  in  custody  under  a  sentence  of  death  pro- 
nounced by  a  military  commission  was  released  upon 
habeas  corpus.  The  last  clause  of  Section  2  of  Article  III 
of  the  Constitution  declares  that  "the  trial  of  all  crimes, 
except  in  cases  of  impeachment,  shall  be  by  jury ;  and  such 
trial  shall  be  held  in  the  state  where  the  said  crimes  shall 
have  been  committed ;  but  when  not  committed  within  any 
state,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed.''  This  clause  con- 
trols criminal  proceedings  in  the  District  of  Columbia.85 
It  does  not  prohibit  the  establishment  of  consular  tribunals 
in  foreign  lands ; 86  or  the  waiver  of  jury  trial  for  minor 
offenses.87  The  IV  Amendment  declares  that  "the  right 
of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue,  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized. ' '  This  Amendment  forbids 
Congress  to  authorize  a  court  in  revenue  cases  to  require, 
on  motion  of  the  government's  attorney,  the  defendant,  or 
claimant,  to  produce  in  court  his  books,  papers,  etc., 
under  penalty  of  admitting  the  allegations  of  the  govern- 
ment's  attorney  as  to  that  which  those  books,  papers,  etc., 
would  prove  if  produced.88 

85  Callan  v.  Wilson,  127  U.  S.  540. 

86  In  re  Eoss,  140  U.  S.  453. 

87Schick  v.  U.  S.,  195  U.  S.  65;  Harlan,  J.,  dissented.  On  the  same 
clause,  see  also  N.,  C.  &  St.  L.  Ky.  v.  Alabama,  128  id.  96;  In  re  Debs,  158 
id.  564,  581. 

88  Boyd  v.  U.  S.,  116  U.  S.  616.  See  also  Adams  v.  New  York,  192  id. 
585,  for  a  discussion  of  the  Amendment. 


THE   V  AMENDMENT— DUE   PBOCESS   OF   LAW.  247 

The  V  Amendment—  (a)  Due  process  of  law. 

112.  The  V  Amendment89  declares,  that  "no  person 
shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger."  This  constitutional  provision 
forbids  a  prosecution  upon  information  in  the  courts  of 
the  United  States  in  the  cases  of  crimes  punishable  by 
imprisonment  for  a  term  of  years  at  hard  labour.90  But 
a  court  may,  for  professional  misconduct,  strike  an  attor- 
ney from  its  rolls ; 91  and  a  court  martial  may  try  a  naval 
officer  in  time  of  peace,  the  qualification  "when  in  actual 
service  in  time  of  war  or  public  danger"  applying  only 
to  the  militia.92  This  Amendment  also  forbids  the  trial 
or  conviction  of  a  prisoner  in  a  case  where  after  present- 
ment made  by  the  grand  jury,  the  indictment  is  without  re- 
submission  to  the  grand  jury,  amended  by  striking  out 
words,  even  though  those  words  be  regarded  by  the  court 
as  surplusage,  and  a  prisoner,  after  trial,  conviction,  and 
sentence  on  an  indictment  so  amended,  is  entitled  to  his 
discharge  on  habeas  corpus?*  The  same  Amendment  also 
declares  that  no  person  shall  "be  deprived  of  life,  lib- 
erty, or  property,  without  due  process  of  law. ' '  In  Mur- 
ray 's  Lessee  v.  H.  L.  &  I.  Co.,94  Curtis,  J., said,  "The  words 

89  The  V  Amendment  is  a  restraint  upon  the  exercise  of  powers  by  the 
United  States,  but  not  by  the  states:   Barren  v.  Baltimore,  7  Pet.  243; 
Withers  v.  Buckley,  20  How.  84;  Davidson  v.  New  Orleans,  96  U.  S.  97; 
Kelly  v.  Pittsburgh,  104  id.  78;   Thorington  v.  Montgomery,  147  id.  490; 
C.  C.  D.  Co.  v.  Ohio,  183  id.  238;  Ohio  v.  Dollison,  194  id.  445;  nor  by  an 
Indian  tribe :  Talton  v.  Mayes,  163  id.  376. 

90  Ex  parte  Wilson,  114  U.  S.  417;  Mackin  v.  U.  S.,  117  ia.  348;  Parkin- 
son v.  U.  S.,  121  id.  281;  U.  S.  v.  De  Walt,  128  id.  393. 

91  Ex  parte  Wall,  107  U.  S.  265. 

92  Johnson  v.  Sayre,  158  U.  S.  109. 

93  Ex  parte  Bain,  121  U.  S.  1. 
94 18  How.  272,  276. 


248  THE    JUDICIAL   POWEK. 

'due  process  of  law'  were  undoubtedly  intended  to  convey 
the  same  meaning  as  the  words  'by  the  law  of  the  land' 
in  Magna  Charta.  Lord  Coke,  in  his  commentary  on 
those  words,95  says  they  mean  due  process  of  law.  The 
constitutions,  which  had  been  adopted  by  the  several  states 
before  the  formation  of  the  federal  Constitution,  follow- 
ing the  language  of  the  great  charter  more  closely,  gener- 
ally contained  the  words,  'but  by  the  judgment  of  his 
peers,  or  the  law  of  the  land. '  .  .  .  The  Constitution  con- 
tains no  description  of  those  processes  which  it  was 
intended  to  allow  or  forbid.  It  does  not  even  declare  what 
principles  are  to  be  applied  to  ascertain  whether  it  be  due 
process.  It  is  manifest  that  it  was  not  left  to  the  legisla- 
tive power  to  enact  any  process  which  might  be  devised. 
The  Article  is  a  restraint  on  the  legislative  as  well  as  on 
the  executive  and  judicial  powers  of  the  government,  and 
cannot  be  so  construed  as  to  leave  Congress  free  to  make 
any  process  due  process  of  law  by  its  mere  will.  To  what 
principle,  then,  are  we  to  resort  to  ascertain  whether  this 
process,  enacted  by  Congress,  is  'due  process.'  To  this 
the  answer  must  be  twofold.  We  must  examine  the  Con- 
stitution itself  to  see  whether  this  process  be  in  conflict 
with  any  of  its  provisions.  If  not  found  to  be  so,  we  must 
look  to  those  settled  usages  and  modes  of  proceeding 
existing  in  the  common  and  statute  law  of  England,  before 
the  emigration  of  our  ancestors,  and  which  are  shown  not 
to  have  been  unsuited  to  their  civil  and  political  conditions 
by  having  been  acted  on  by  them  after  the  settlement 
of  this  country."96  In  a  later  case,  Field,  J.,  said 

95  2  Inst.  50. 

96  In  Holden  v.  Hardy,  169  U.  S.  366,  385,  which  arose  under  the  XIV 
Amendment,  Brown,  J.,  while  quoting  the  language  of  Curtis,  J.,  said  that 
the  court  "has  not  failed  to  recognize  the  fact  that  the  law  is,  to  a  certain 
extent,  a  progressive  science ;  that  in  some  of  the  states  methods  of  procedure, 
which  at  the  time  the  Constitution  was  adopted  were  deemed  essential  to  the 
protection  and  safety  of  the  people,  or  to  the  liberty  of  the  citizen,  have  been 


THE    V   AMENDMENT  — DUE    PEOCESS    OF    LAW.  249 

that  the  words,  "due  process  of  law,"  mean  "a  course 
of  legal  proceedings,  according  to  those  rules  and  prin- 
ciples which  have  been  established  in  our  system  of  juris- 
prudence for  the  protection  and  enforcement  of  private 
rights.  To  give  such  proceedings  any  validity,  there  must 
be  a  tribunal  competent  by  its  constitution,  that  is,  by  the 
law  of  its  creation,  to  pass  upon  the  subject-matter  of  the 
suit;  and,  if  that  involves  merely  a  determination  of  the 
personal  liability  of  the  defendant,  he  must  be  brought 
within  its  jurisdiction  by  service  of  process  within  the 
state,  or  by  his  voluntary  appearance.'7  97  In  conformity 
with  these  principles  it  has  been  held,  that  the  trial  of  a 
citizen  by  military  commission  within  a  state  where  the 
courts  are  open  and  the  course  of  justice  unobstructed 


found  to  be  no  longer  necessary.  .  .  .  The  whole  fabric  of  special  pleading, 
once  thought  to  be  necessary  to  the  elimination  of  the  real  issue  between 
the  parties,  has  crumbled  to  pieces.  .  .  .  Witnesses  are  no  longer  incom- 
petent by  reason  of  interest,  even  though  they  be  parties  to  the  litigation. 
Indictments  have  been  simplified,  and  an  indictment  for  the  most  serious 
of  crimes  is  now  the  simplest  of  all.  In  several  of  the  states  grand  juries, 
formerly  the  only  safeguard  against  a  malicious  prosecution,  have  been 
largely  abolished,  and  in  others  the  rule  of  unanimity,  so  far  as  applied 
to  civil  cases,  has  given  way  to  verdicts  rendered  by  a  three-fourths  majority. 
This  case  does  not  call  for  an  expression  of  opinion  as  to  the  wisdom  of 
these  changes,  or  their  validity  under  the  XIV  Amendment.  .  .  .  They 
are  mentioned  only  for  the  purpose  of  calling  attention  to  the  probability 
that  other  changes  of  no  less  importance  may  be  made  in  the  future,  and 
that  while  the  cardinal  principles  of  justice  are  immutable,  the  methods 
by  which  justice  is  administered  are  subject  to  constant  fluctuation,  and  that 
the  Constitution  of  the  United  States,  which  is  necessarily  and  to  a  large 
extent  inflexible  and  exceedingly  difficult  of  amendment,  should  not  be 
so  construed  as  to  deprive  the  states  of  the  power  to  so  amend  their  laws 
as  to  make  them  conform  to  the  wishes  of  the  citizens  as  they  may  deem 
best  for  the  public  welfare  without  bringing  them  into  conflict  with  the 
supreme  law  of  the  land.  Of  course,  it  is  impossible  to  forecast  the  char- 
acter or  extent  of  these  changes,  but  in  view  of  the  fact  that  from  the  day 
Magna  Charta  was  signed  to  the  present  moment,  amendments  to  the  struc- 
ture of  the  law  have  been  made  with  increasing  frequency,  it  is  impossible 
to  suppose  that  they  will  not  continue,  and  the  law  be  forced  to  adapt 
itself  to  new  conditions  of  society." 
97  Pennoyer  v.  Neff,  95  U.  S.  714,  733. 


250  THE   JUDICIAL,   POWER. 

is  not  due  process  of  law.98  It  has  also  been  held  that 
there  is  a  deprivation  of  liberty  without  due  process  of 
law  when  a  court  by  its  order,  warrant,  or  commitment, 
holds  a  prisoner  in  custody,  when  the  prima  facie  case 
against  the  prisoner  does  not  show  that  he  has  committed 
an  offense  of  which  the  court  committing  him  can  take 
cognizance,  and  in  any  such  case  of  commitment  by  an 
inferior  court  of  the  United  States  the  Supreme  Court 
will  issue  a  habeas  corpus  and  discharge  the  prisoner." 

On  the  other  hand,  it  has  been  held  that  the  owner  of 
property  distrained  and  sold  for  non-payment  of  taxes 
due  to  the  United  States,  is  not  deprived  of  his  property 
without  due  process  of  law.100  It  has  also  been  held  that 
an  officer  of  the  United  States,  whose  accounts,  as  settled 
by  the  auditing  officers  of  the  Treasury,  show  him  to  have 
neglected  to  account  for  and  pay  over  public  moneys 
received  by  him,  is  not  deprived  of  his  property  without 
due  process  of  law,  when  the  Solicitor  of  the  Treasury,  in 
obedience  to  an  act  of  Congress  has  issued  a  distress  war- 
rant under  which  the  defaulting  officer's  real  property 
has  been  taken  in  execution  and  sold  by  a  marshal  of  the 
United  States  without  further  proceedings,  judicial,  or 
otherwise.1 

98  Ex  parte  Milligan,  4  Wall.  2. 

"United  States  v.  Hamilton,  3  Ball.  17;  Ex  parte  Bollman  and  Swart- 
wout,  4  Cr.  75;  Ex  parte  Kearney,  7  Wheat.  38;  Ex  parte  Wells,  18  How. 
307 ;  Ex  parte  Lange,  18  Wall.  163 ;  Ex  parte  Parks,  93  U.  S.  18 ;  Ex  parte 
Yarbrough,  110  U.  S.  651;  U.  S.  v.  Waddell,  112  id.  76;  Hans  Nielsen, 
Petitioner,  131  id.  176;  In  re  Swan,  150  id.  637;  In  re  McKenzie,  Peti- 
tioner, 180  id.  536.  See  also  Cosgrove  v.  Winney,  174  id.  64. 

100  Springer  v.  U.  S.,  102  U.  S.  586. 

1  Murray's  Lessee  v.  H.  L.  &  I.  Co.,  18  How.  272. 

The  constitutional  requirement  is  designed  to  prevent  the  arbitrary  exer- 
cise of  the  powers  of  government.  See  Sec.  117,  infra.  In  trials  within 
a  court  of  justice  the  defendant  must  be  given  a  hearing  before  judgment 
can  be  pronounced  against  his  property  or  against  himself,  and  the  rights 
which  are  secured  to  him  by  other  provisions  of  the  Constitution,  such  as 
the  right  to  trial  by  jury,  must  be  held  sacred.  See  Sec.  117,  infra;  cf. 
Ex  parte  Terry,  128  U.  S.  289.  But  the  requirement  of  due  process  of 


THE   V  AMENDMENT— JEOPARDY.  251 

The  V  Amendment—  (b)  Jeopardy,  etc. 

"Nor  shall  any  person  be  subject  for  the  same  offense 
to  be  twice  put  in  jeopardy  of  life  or  limb."  "Every- 
body agrees  that  the  principle  in  its  origin  was  a  rule 
forbidding  a  trial  in  a  new  and  independent  case  where  a 
man  had  already  been  tried  once."  2  Nevertheless  there 
may  be  a  second  trial  if  the  jury  disagree,3  or  if  a  verdict 
against  the  prisoner  is  set  aside  on  his  motion  for  error 
at  the  trial.4  But  a  prisoner  in  the  Philippine  Islands 
having  been  tried  and  acquitted  by  the  court  of  the  first 
instance,  and  upon  appeal  by  the  government,  the  finding 
of  acquittal  having  been  reversed  by  the  appellate  tribunal 
in  the  islands,  and  the  prisoner  sentenced  to  imprison- 

law  does  not  of  itself  control  mere  forms  of  procedure  or  require  the  follow- 
ing of  any  one  course  of  action  in  all  cases;  the  Amendment  is  complied 
with  if,  in  each  case,  a  procedure  be  adopted  which  is  appropriate  to  the 
end  sought:  Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181.  It  is  not 
necessary  that  the  entire  work  of  government  be  transacted  in  a  court- 
room, in  the  presence  of  judge  and  jury.  Congress  may  grant  to  executive 
officers  the  power  to  exclude  or  expel  aliens:  The  Japanese  Immigrant 
Case,  189  U.  S.  86;  U.  S.  v.  Williams,  194  id.  279;  cf.  Wong  Wing  v. 
TJ.  S.,  163  id.  228;  to  exclude  sub-standard  proposed  imports:  Buttfield  v. 
Stranahan,  192  U.  S.  470;  and  to  refuse  delivery  of  mail  to  persons  seeking 
to  defraud:  Public  Clearing  House  v.  Coyne,  194  U.  S.  497.  Taxes  and 
assessments  may  be  levied,  and  property  may  be  taken  for  public  use,  by 
special  commissions;  and  the  Constitution  is  complied  with  when  the  tax- 
payer or  property-owner  is  given  an  opportunity  for  a  hearing  at  some 
stage  of  the  proceedings:  Bauman  v.  Eoss,  167  U.  S.  548;  Wilson  v.  Lam- 
bert, 168  id.  611;  Wight  v.  Davidson,  181  id.  371.  So  also,  Congress  may, 
in  the  ordinary  course  of  legislation,  prohibit  the  making  of  contracts  in 
restraint  of  interstate  commerce  without  thereby  depriving  any  citizen  of 
his  liberty  without  due  process  of  law:  A.  P.  &  S.  Co.  v.  U.  S.,  175  U.  S. 
211.  And  Congress  may  impose  an  excise  upon  artificially  coloured  oleo- 
margarine, although  it  does  not  tax  butter  which  is  artificially  coloured, 
and  although  the  effect  of  the  tax  is  to  suppress  the  manufacture  of  such 
oleomargarine:  McCray  v.  U.  S.,  195  U.  S.  27;  Puller,  C.  J.,  Brown  and 
Peckham,  JJ.,  dissenting.  On  congressional  legislation,  see  also  Mormon 
Church  v.  U.  S.,  136  U.  S.  1. 

2  Per  Holmes,  J.,  Kepner  v.  U.  S.,  195  U.  S.  100,  134. 

3TJ.  S.  v.  Perez,  9  Wheat.  579. 

4Hopt  v.  People,  104  U.  S.  631,  635;  Hopt  v.  Utah,  110  id.  574;  114  id. 
488,  492;  120  id.  430,  442;  U.  S.  v.  Ball,  163  id.  662,  672. 
17 


252  THE   JUDICIAL   POWEK. 

ment,  the  Supreme  Court  held5  that  the  government's 
appeal  twice  put  the  prisoner  in  jeopardy.  When  a  court 
imposes  a  fine  and  imprisonment  as  a  punishment  where 
the  statute  under  which  the  prisoner  was  indicted  con- 
ferred the  power  to  punish  by  fine  or  imprisonment,  and 
the  fine  has  been  paid,  the  court  cannot  modify  its  judg- 
ment by  thereafter  imposing  imprisonment  alone,  for  the 
judgment  of  the  court  having  been  executed  so  as  to  be  a 
full  satisfaction  of  one  of  the  alternative  penalties,  the 
power  of  the  court  as  to  that  offense  is  ended,  and  a  second 
judgment  on  the  same  verdict,  is,  under  such  circum- 
stances, void  for  want  of  power,  and  the  party  must  be 
discharged.6  So  also  where  one  of  three  defendants 
jointly  indicted  for  murder  has  been  acquitted  and  his 
associates  have  been  convicted,  upon  a  setting  aside  of  the 
verdicts  because  of  a  defect  in  the  indictment,  the  verdict 
of  acquittal  upon  the  merits  is  a  bar  to  a  second  trial  of 
the  person  acquitted ;  but  the  defendants  who  have  availed 
themselves  of  the  invalidity  of  the  first  indictment  cannot, 
upon  the  granting  of  a  new  trial,  claim  that  their  lives  are 
for  a  second  time  jeopardized.7  Moreover,  a  court  may, 
when  necessary,  discharge  a  jury  from  giving  a  verdict 
and  order  a  trial  by  another  jury,  and  the  defendant  is 
not  thereby  twice  put  in  jeopardy  within  the  meaning  of 
the  Constitution.8 

The  V  Amendment  also  declares,  that  no  person  "  shall 
be  compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself. "  In  Brown  v.  Walker,9  it  was  held  that  this 

6  Kepner  v.  U.  S.,  195  U.  S.  100 ;  Holmes,  White,  and  McKenna,  JJ.,  dis- 
senting. 

6  Ex  parte  Lange,  18  Wall.  163;  cf.  Callan  v.  Wilson,  127  U.  S.  540,  557; 
Carter  v.  McClaughry,  183  id.  365. 

7  U.  S.  v.  Ball,  163  U.  S.  662. 

8  Thompson  v.  U.  S.,  155  U.  S.  271.      See  also  Dreyer  v.  Illinois,  187 
id.  71. 

9 161  U.  S.  591. 


THE   VI   AMENDMENT.  253 

provision  does  not  protect  a  witness  who  refuses  to  answer 
a  question  when  he  is  by  law  afforded  absolute  immunity, 
federal  and  state,  for  the  offense  to  which  the  question 
relates.  "The  fact  that  the  testimony  may  tend  to  de- 
grade the  witness  in  public  estimation  does  not  exempt 
him  from  the  duty  of  disclosure."10 

The  provision  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation  entitles  a  pat- 
entee to  payment  for  the  use  of  his  invention,11  and  it 
entitles  a  corporation  to  compensation  for  the  taking  of  a 
franchise  to  exact  tolls  as  well  as  for  the  value  of  the 
tangible  property  taken ; 12  but  payment  need  not  be  made 
until  the  actual  possession  of  land  has  passed,13  benefits 
to  the  property  left  may  be  set  off  against  damages  for 
the  property  taken,14  and  compensation  for  an  indirect 
injury  to  property  need  not  be  made.15  Yet  where,  by  the 
construction  of  a  dam,  the  United  States  so  floods  lands 
belonging  to  an  individual  as  to  totally  destroy  its  value, 
compensation  must  be  rendered.16  Congress  does  not 
deprive  a  contestant  of  a  pre-emption  entry  on  public 
lands  of  his  property  by  confirming  the  title  of  the  orig- 
inal entryman,  for  during  the  pendency  of  the  contest  the 
contestant  has  no  vested  right.17 

The  VI  Amendment. 

113.  The  VI  Amendment  declares  that,  "in  all  criminal 
prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  state  and 

10  P.  605.     Four  justices  dissented. 

11  Belknap  v.  Schild,  161  U.  S.  10. 

12  M.  N.  Co.  v.  U.  S.,  148  U.  S.  312. 

18  Cherokee  Nation  v.  S.  K.  By.,  135  U.  S.  641. 

14  Bauman  v.  Boss,  167  U.  S.  548. 

15  Scranton  v.  Wheeler,  179  U.  S.  141 ;  Gibson  v.  U.  S.,  166  id.  269 ;  Bed- 
ford v.  U.  S.,  192  id.  217. 

16  U.  S.  v.  Lynah,  188  U.  S.  445;  cf.  Bedford  v.  U.  S.,  192  id.  217. 

17  Emblen  v.  L.  L.  Co.,  184  U.  S.  660. 


254  THE    JUDICIAL,   POWEK. 

district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by 
law,  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation;  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obtaining  witnesses 
in  his  favour,  and  to  have  the  assistance  of  counsel  for  his 
defense. " 18 

This  Amendment,  of  course,  applies  only  to  criminal 
proceedings ; 19  and  the  right  to  trial  by  jury  may  be 
waived  by  persons  charged  with  minor  offenses.20  When 
the  crime  has  been  committed  within  the  territories  Con- 
gress may  designate  the  place  of  trial  at  any  time  previous 
to  the  trial.21  An  indictment  for  sending  obscene  matter 
through  the  mail  need  not  set  forth  the  objectionable 
language  in  full.22  The  requirement  that  the  prisoner 
"be  confronted  with  the  witnesses  against  him"  will  not 
invalidate  a  conviction  in  a  case  where  the  witnesses  are 
absent  by  the  procurement  of  the  prisoner,  or  where 
enough  has  been  proven  to  throw  on  him  the  burden  of 
showing,  and  he  having  full  opportunity  therefor,  fails 
to  show,  that  he  has  not  been  instrumental  in  concealing 
or  keeping  away  the  witnesses,  and  ground  having  been 
thus  laid,  evidence  is  admissible  against  him  of  that  which 
the  witnesses  testified  at  a  previous  trial  on  the  same  issue 
between  the  United  States  and  the  prisoner.23  In  the 
event  of  the  death  of  witnesses  for  the  prosecution,  testi- 
mony given  by  those  witnesses  at  a  previous  trial 

18  This  Amendment  is  a  restraint  upon  the  judicial  action  of  the  United 
States,  and  not  of  the  states:  Twitchell  v.  The  Commonwealth,  7  Wall.  321. 

19  U.  S.  v.  Zucker,  161  U.  S.  475;  Ex  parte  Terry,  128  id.  289;  Pong 
Yue  Ting  v.  U.  S.,  149  id.  698;  Wong  Wing  v.  U.  S.,  163  id.  228;  U.  S. 
v.  Williams,  194  id.  279. 

20  Schick  v.  U.  S.,  195  U.  S.  65.     Harlan,  J.,  dissented. 

21  Cook  v.  U.  S.,  138  U.  S.  157.     See  also  Art.  Ill,  Sec.  2;  supra,  sec.  111. 

22  Eosen  v.  U.  S.,  161  U.  S.  29. 
23Keynolds  v.  U.  S.,  98  U.  S.  145. 


THE   VII    AND   VIII   AMENDMENTS.  255 

on  the  same  issue  is  admissible ; 24  but  their  evidence  is 
not  admissible  when  their  absence  is  due  to  negligence  of 
the  officers  of  the  government.25  And  in  a  trial  for  receiv- 
ing stolen  property,  the  record  of  the  conviction  of  the 
thief  cannot  be  admitted  in  evidence  to  prove  the  theft.26 

The  VII  and  VIII  Amendments. 

114.  The  VII  Amendment  declares,  that,  "in  suits  at 
common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served/'27 This  Amendment  does  not  affect  equity 
causes  in  the  federal  courts,  for  the  determination  by  a 
court  of  equity,  according  to  its  own  course  and  practice 
of  issues  of  fact,  does  not  impair  the  right  of  trial  by  jury, 
because  that  right  does  not  extend  to  causes  of  equitable 
jurisdiction.28  Nor  does  this  Amendment  affect  proceed- 
ings upon  claims  against  the  United  States  heard  in  the 
Court  of  Claims  without  the  intervention  of  a  jury,  for  the 
government  being  suable  only  by  its  own  consent,  may 
declare  in  what  court  it  will  be  sued,  and  may  prescribe 
the  forms  of  pleading  and  rules  of  practice  in  that  court, 
and  such  claims  so  prosecuted  are  not  suits  at  common 
law.29  Nor  does  it  affect  proceedings  before  a  commis- 
sion created  for  the  purpose  of  hearing  and  deciding  upon 
claims  against  a  territorial  municipal  corporation  which 
have  no  legal  obligation,  but  which  have  such  equity  as 

MMattox  v.  U.  S.,  156  U.  S.  237. 

25  Motes  v.  TL  S.,  178  U.  S.  458. 

26  Kirby  v.  U.  S.,  174  U.  S.  47. 

27  This  Amendment  is   a  restraint  upon   the   exercise   of  powers  by   the 
United  States,  but  not  by  the  states:   Edwards  v.  Elliott,  21  WaU.  532; 
Walker  v.  Sauvinet,  92  U.  S.  90 ;  Pearson  v.  Yewdall,  95  id.  294. 

28  Barton  v.  Barbour,  104  U.  S.  126 ;  Parsons  v.  Bedford,  3  Pet.  433,  446. 
But  where  a  plaintiff  has  an  appropriate  remedy  at  law  he  cannot  seek 
relief  in  a  court  of  equity:  Whitehead  v.  Shattuck,  138  U.  S.  146;  Gates 
v.  Allen,  149  id.  451. 

^McElrath  v.  U.  S.,  102  U.  S.  426. 


256  THE   JUDICIAL,   POWEE. 

to  cause  provision  to  be  made  for  their  investigation  and 
payment  when  found  proper.30  Nor  does  this  Amend- 
ment relieve  a  party  from  the  consequences  of  his  ante- 
cedent voluntary  relinquishment  of  a  right  of  trial  by 
jury  in  any  particular  cause,  as,  for  instance,  in  the  case 
of  a  banking  corporation  whose  state  charter  stipulates 
that  the  bank  should  have  a  summary  remedy  by  execution 
without  jury  trial  for  the  collection  of  notes  indorsed 
to  it,  and  in  express  terms  made  negotiable  at  the  bank.31 
Nor  is  the  granting  of  a  nonsuit  for  want  of  sufficient 
evidence  an  infringement  of  the  constitutional  rights  of 
the  plaintiff.32  In  all  cases,  however,  in  which  the  right 
of  trial  by  jury  is  secured  by  the  Constitution  the  jury 
must  be  unanimous  in  rendering  its  verdict.33  The  VII 
Amendment  also  declares  that  "no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  United 
States  than  according  to  the  rules  of  the  common  law." 
As  Story,  J.,  said  in  Parsons  v.  Bedford,34  "This  is  a 
prohibition  to  the  courts  of  the  United  States  to  re- 
examine  any  facts  tried  by  a  jury  in  any  other  manner. 
The  only  modes  known  to  the  common  law  to  re-examine 
such  facts,  are  the  granting  of  a  new  trial  by  the  court 
where  the  issue  was  tried,  or  to  which  the  record  was 
properly  returnable;  or  the  award  of  a  venire  facias  de 
novo  by  an  appellate  court,  for  some  error  of  law  which 
intervened  in  the  proceedings."  The  Amendment  ob- 
viously governs  both  the  original  and  appellate  jurisdic- 
tion of  the  courts  of  the  United  States,  and  forbids  the 
reversal  of  a  verdict  of  a  jury  save  as  above  indicated. 
But  facts  tried  by  a  jury  before  a  justice  of  the  peace 

30  Guthrie  Nat.  Bank  v.  Guthrie,  173  IT.  S.  528. 

31  Bank  of  Columbia  v.  Okely,  4  Wheat.  235. 
82  Coughran  v.  Bigelow,  164  U.  S.  301. 

33  A.  P.  Co.  v.  Fisher,  166  U.  S.  464;   Springville  v.  Thomas,  Salt  Lake 
City  v.  Tucker,  ibid.  707. 
14  3  Pet.  447. 


THE   VII   AND   VIII   AMENDMENTS.  257 

may  be  tried  anew  by  a  jury  in  the  appellate  court,  for  a 
trial  by  jury  in  the  sense  of  the  common  law  and  of  the 
VII  Amendment  involves  the  presence  of  a  judge  having 
the  usual  powers  of  superintending  the  course  of  the  trial, 
instructing  the  jury  on  the  law  and  advising  them  on  the 
facts,  and  setting  aside  their  verdict  if  in  his  opinion 
against  the  law  or  the  evidence.35  And  a  trial  court  may 
make  its  decision  of  a  motion  for  a  new  trial  depend  upon 
a  remission  of  part  of  the  verdict.36  On  the  other  hand, 
Congress  cannot  by  statute  provide  for  the  removal  from 
a  state  court  into  a  federal  court  of  causes  tried  by  jury 
in  the  state  court,  and  for  a  retrial  in  the  federal  court  of 
the  facts  and  law  in  such  action  in  the  same  manner  as  if 
the  same  had  been  originally  commenced  in  the  federal 
court.37 

The  VIII  Amendment  declares  that ' '  excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishments  inflicted/'  This  Amendment  re- 
stricts national  and  not  state  legislative  and  judicial  ac- 
tion.38 Neither  shooting  to  death,39  nor  electrocution,40 
as  modes  of  inflicting  the  death  penalty  after  trial,  convic- 
tion, and  sentence  in  a  court  of  proper  jurisdiction,  nor  a 
fine  of  fifty  dollars  and  three  months'  imprisonment  at 
hard  labour  for  selling  liquor  in  violation  of  law,41  nor  ten 
years'  imprisonment  for  conspiracy  to  defraud,  nor  the 
infliction  upon  one  prisoner  of  a  heavier  punishment  than 
that  inflicted  upon  another  prisoner  for  an  identical 

36  C.  T.  Co.  v.  Hof ,  174  U.  S.  1. 

36  A.  V.  L.  &  C.  Co.  v.  Mann,  130  U.  S.  69. 

37  The  Justices  v.  Murray,  9  Wall.  274;  C.,  B.  &  Q.  E.  v.  Chicago,  166 
U.  S.  226. 

^Pervear  v.  The  Commonwealth,  5  Wall.  475;   O'Neil  v.  Vermont,  144 
U.  S.  323. 

39  Wilkerson  v.  Utah,  99  U.  S.  130. 

40  In  re  Kemmler,  136  U.  S.  436. 

"Pervear  v.  The  Commonwealth,  5  Wall.  475. 


258  THE    JUDICIAL,    POWEE. 

offense,42  can  be  regarded  as  a  violation  of  the  VIII 
Amendment. 

The  first  ten  Amendments  were  proposed  by  the  first 
Congress  for  adoption  by  the  states  and  were  intended  to 
constitute  a  federal  Bill  of  Rights.  These  Amendments 
constitute  restrictions  upon  the  United  States  and  they 
are  obviously  not  restrictions  upon  the  legislative  or 
judicial  powers  of  the  states. 

The  XI  Amendment. 

115.  The  Supreme  Court  having,  in  Chisholm  v. 
Georgia,43  affirmed  its  orginal  jurisdiction  in  actions 
brought  by  citizens  of  one  state  against  another  state,  in 
1797  the  XI  Amendment  was  adopted,  declaring  that  "the 
judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens 
of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state. ' '  That  Amendment  having  taken  effect  on  8th  Janu- 
ary, 1798,  in  that  year  the  Supreme  Court  decided  in 
Hollingsworth  v.  Virginia,44  that  the  Amendment  barred 
any  further  proceedings  in  cases  then  depending  in  the 
courts  of  the  United  States  in  which  a  citizen  of  one  state 
was  the  plaintiff,  and  another  state  was  the  defendant. 
In  Osborn  v.  Bank  of  U.  S.,45  Marshall,  C.  J.,  said: 
* '  The  XI  Amendment  ...  is  of  necessity  limited  to  those 
suits  in  which  a  state  is  a  party  to  the  record,"  but  he 
added,46  "the  state  not  being  a  party  to  the  record,  and 
the  court  having  jurisdiction  over  those  who  are  parties 
on  the  record,  the  true  question  is  not  one  of  jurisdiction, 

42  Howard  v.  Fleming,  191  U.  S.  126. 

43  2  Ball.  419. 

44  3  Ball.  378. 

45  9  Wheat.  738,  857. 
"P.  858. 


THE   XI   AMENDMENT.  259 

but  whether  in  the  exercise  of  its  jurisdiction,  the  court 
ought  to  make  a  decree  against  the  defendants;  whether 
they  are  to  be  considered  as  having  a  real  interest,  or  as 
being  only  nominal  defendants."  On  the  other  hand  he 
said,47  "This  suit  is  not  against  the  state  of  Ohio  within 
the  view  of  the  Constitution,  the  state  being  no  party  on 
the  record. ' '  The  jurisdictional  question  in  the  cause  was 
as  to  the  power  of  the  court  to  take  cognizance  of  a  suit 
in  equity  brought  by  the  Bank  of  the  United  States 
against  the  auditor  of  the  state  of  Ohio  to  enjoin  the  col- 
lection of  a  tax  on  the  business  of  the  bank  imposed  by  a 
statute  of  Ohio,  and  to  recover  a  sum  of  money  wrong- 
fully taken  out  of  the  vaults  of  the  bank  by  the  state 
auditor  by  way  of  enforcing  the  payment  of  the  tax,  and 
the  court  sustained  the  jurisdiction  on  the  grounds  stated 
by  the  chief  justice.  In  view  of  the  judgment  in  the 
cause  and  the  dicta  of  the  chief  justice,  it  was  not  un- 
natural that  the  presence  or  absence  of  a  state  as  a  party 
defendant  on  the  record  should  have  been  regarded  as  the 
criterion  by  which  to  determine  whether  or  not  a  suit  was 
within  the  purview  of  the  XI  Amendment.  Indeed  in  Davis 
v.  Gray,48  the  court  went  so  far  as  to  hold  that  a  receiver 
of  a  railway  could  sue  in  equity  the  governor  of  the  state 
incorporating  the  railway  and  the  land  commissioner  of 
the  state  to  restrain  the  issue  of  patents  to  individuals 
for  certain  lands  theretofore  granted  by  the  state  to  the 
railway  on  certain  conditions,  and  resumed  by  the  state 
for  alleged  non-performance  of  the  condition,  and  that  it 
not  being  possible  to  make  the  state  a  party  the  plaintiff's 
rights  could  be  vindicated  by  a  decree  against  the  officers 
of  the  state,  but  the  later  decisions  of  the  court  have  tended 
toward  the  establishment  of  a  sounder  rule  on  this  sub- 
ject ;  and  it  is  now  settled,  that  the  criterion  is  not  the 

"P.  868. 

*•  16  Wall.  203. 


260  THE   JUDICIAL   POWER. 

presence  or  absence  of  the  state  as  a  party  defendant  on 
the  record,  but  the  question  of  fact,  is  or  is  not  the  suit 
in  substance,  though  not  in  form,  a  suit  by  a  citizen  of 
another  state  against  a  state?  If  a  state  be  either  a  de- 
fendant on  the  record,  or  the  real  defendant  though  not 
a  party  on  the  record,  the  XI  Amendment  forbids  the 
court  to  take  jurisdiction  of  the  cause,  unless  the  state 
by  its  voluntary  appearance,  as  in  Clark  v.  Barnard,49 
submits  itself  to  the  jurisdiction  of  the  court.  In  con- 
formity with  this  view  it  has  been  held  that  a  suit  by,  or 
against,  the  governor  of  a  state  in  his  representative 
capacity  is  a  suit  against  the  state ; 50  that  the  XI  Amend- 
ment prohibits  a  suit  in  the  federal  courts  against  the 
officers  of  a  state  to  enforce  the  performance  of  a  contract 
made  by  the  state,  where  the  controversy  is  as  to  the 
validity  and  obligation  of  the  contract,  and  where  the  rem- 
edy sought  is  a  performance  of  the  contract  by  the  state, 
the  nominal  defendants  having  no  personal  interest  in  the 
subject-matter ; 51  it  has  also  been  held  that  where  a  state 
had  bought  a  railway  from  a  receiver  appointed  at  its 
instance,  as  the  holder  of  the  first  mortgage  bonds  of 
the  railway,  the  holders  of  junior  bonds  having  filed  a 
bill  to  foreclose  their  mortgage  and  to  set  aside  the  sale  to 
the  state,  making  the  governor  and  treasurer  of  the  state 
parties  defendant,  the  state  being  a  necessary  party  to 
the  relief  sought,  the  XI  Amendment  barred  the  suit;52 
and  that  state  officers  cannot  be  compelled,  at  the  suit  of 
a  citizen  of  another  state,  to  appropriate  the  public  money 

4a  108  U.  S.  436,  447. 

50  Georgia  v.  Brailsford,  2  Dall.  402;   The  Governor  of  Georgia  v.  Mad- 
razo,  1  Pet.  110 ;  Kentucky  v.  Dennison,  24  How.  66. 

51  Hagood  v.  Southern,  117  U.  S.  52 ;   Governor  of  Georgia  v.  Madrazo, 
1  Pet.  110;  Louisiana  v.  Jumel,  107  U.  S.  711;  North  Carolina  v.  Temple, 
134  id.  22;  Louisiana  v.  Steele,  ibid.  230.     See  also  Chandler  v.  Dix,  194 
id.  590. 

62  Cunningham  v.  M.  &  B.  E.,  109  U.  S.  446. 


THE   XI   AMENDMENT.  261 

of  the  state  in  a  way  prohibited  by  the  laws  of  the  state, 
for  such  a  suit  is  in  fact  against  the  state,  and  where  a 
state  cannot  be  sued,  the  court  cannot  assert  jurisdiction 
over  the  officers  of  the  state,  so  as  to  control  them  in  their 
administration  of  the  finances  of  the  state.53  It  has  also 
been  held  that  the  XI  Amendment  bars  a  suit  by  one  state 
against  another  state,  where  the  plaintiff  state  sues,  not 
in  its  own  right,  but  only  for  the  benefit  of  certain  of  its 
citizens  who  have  assigned  to  it  their  claims  against  the 
state  defendant ; 54  that  a  private  person  cannot  bring  a 
personal  suit  in  the  Supreme  Court  of  the  United  States 
against  a  state  to  recover  the  proceeds  of  property  in  the 
possession  of  that  state,  such  as  the  proceeds  of  certain 
slaves  alleged  to  have  been  illegally  seized  by  the  state,55 
and,  in  the  case  of  In  re  Ayers,56  that  the  XI  Amendment 
forbids  the  court  to  take  jurisdiction  of  a  bill  in  equity 
filed  by  a  holder  of,  and  dealer  in,  coupons  of  the  bonds  of 
the  state,  the  coupons  under  the  statutes  of  the  state  and 
the  judgments  of  the  court  being  receivable  in  payment 
of  state  taxes,  to  enjoin  the  officers  of  a  state  from  prose- 
cuting, on  behalf  of  the  state,  actions  against  citizens  of 
the  state  for  collection  of  taxes,  under  a  statute  of  the 
state  directing  the  prosecution  of  the  actions,  and  provid- 
ing that  "  if  the  defendant  relies  on  a  tender  of  coupons  as 
payment  of  the  taxes  claimed,  he  shall  plead  the  same 
specifically  and  in  writing,  and  file  with  the  plea  the 
coupons  averred  therein  to  have  been  tendered/'  and  "the 
burden  of  proving  the  tender  and  the  genuineness  of  the 
coupons  shall  be  on  the  defendants ; ' '  the  equity  set  up  by 
the  plaintiffs  in  the  injunction  suit  being  that  they  had 

53  Louisiana  v.  Jumel,  107  U.  S.  711. 

34  New  Hampshire  v.  Louisiana,  New  York  v.  Louisiana,  108  U.  S.  76 ;  cf. 
South  Dakota  v.  North  Carolina,  192  id.  286. 

55  Ex  parte  Madrazzo,  7  Pet.  627;  The  Governor  of  Georgia  v.  Madrazo, 
1  Pet.  110. 

56 123  U.  S.  443. 


262  THE    JUDICIAL    POWEK. 

purchased  coupons  for  the  purpose  of  dealing  in  them  and 
selling  them  to  taxpayers  to  use  in  payment  of  taxes  to 
the  state,  and  that,  unless  the  action  threatened  by  the 
state  officers  were  enjoined,  the  plaintiffs  would  not  be 
able  to  sell  their  coupons  at  a  profit.  So,  also,  suit  cannot 
be  maintained  against  a  state  officer  to  compel  the  levying 
of  a  special  tax  for  the  benefit  of  bondholders.57  On  the 
other  hand,  it  has  been  held  that  the  Amendment  does  not 
protect  from  suit  a  county  of  a  state,58  nor  prohibit  the  ex- 
ercise by  the  court  of  its  appellate  jurisdiction  over  state 
courts  in  cases  of  criminal  cognizance,  for  the  purchase 
or  prosecution  of  a  writ  of  error  to  reverse  a  criminal 
conviction  at  the  prosecution  of  the  state  is  not  the  com- 
mencement or  prosecution  of  a  suit  at  law  against  that 
state ;  59  nor  does  the  XI  Amendment  prohibit  the  exercise 
by  the  court  of  jurisdiction  over  a  controversy  between 
individuals  as  to  land  granted  by  and  claimed  under  a 
state ; 60  nor  does  the  fact  that  a  state  is  a,  or  the  sole, 
shareholder  in  a  banking  corporation  prevent  the  courts 
of  the  United  States  from  taking  cognizance  of  a  suit 
against  such  a  corporation,61  for,  as  Marshall,  C.  J.,  said,62 
"when  a  government  becomes  a  partner  in  any  trading 
company,  it  divests  itself,  so  far  as  concerns  the  transac- 
tions of  that  company,  of  its  sovereign  character,  and 
takes  that  of  a  private  citizen."  Nor  does  the  fact  that  a 

67  N.  C.  v.  Temple,  134  U.  S.  22;  Louisiana  v.  Steele,  ibid.  230.     And, 
although  it  is  not  forbidden  by  the  Amendment,  a  suit   against   a  state 
cannot  be  brought  by  one  of  its  own  citizens,  nor  by  a  corporation  created 
by   the   federal    government,    even   when   a   federal   question   is   involved: 
Hans  v.  Louisiana,  134  U.  S.  1;  Smith  v.  Beeves,  178  id.  436. 

68  Lincoln  County  v.  Luning,  133  U.  S.  529. 
"Cohens  v.  Virginia,  6  Wheat.  264. 

60  Fowler  v.  Lindsey,  3  Dall.  411. 

61 L.,  C.  &  C.  E.  v.  Letson,  2  How.  497,  550;  Bank  of  U.  S.  v.  Planters' 
Bank,  9  Wheat.  904,  907;  Bank  of  Kentucky  v.  Wister,  2  Pet.  318,  323; 
Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257,  324 ;  Curran  v.  Arkansas,  15  How. 
304,  309. 

82  9  Wheat.  907. 


THE    XI    AMENDMENT.  263 

state  claims  property,  which  is  not  in  its  own  possession 
but  in  the  possession  of  an  individual  who  has  been  made 
defendant  in  an  action  to  recover  that  property,  oust  the 
jurisdiction  of  the  court  of  the  United  States,  nor  forbid 
the  court  to  give  judgment  in  favour  of  the  plaintiff.63 
It  is  likewise  well  settled,  that  "when  a  plain  official  duty, 
requiring  no  exercise  of  discretion,  is  to  be  performed " 
by  an  officer  of  a  state,  * '  and  performance  is  refused,  any 
person  who  will  sustain  personal  injury  by  such  refusal 
may  have  a  mandamus  to  compel  its  performance;  and 
when  such  duty  is  threatened  to  be  violated  by  some 
positive  official  act,"  of  an  officer  of  a  state,  "any  person 
who  will  sustain  personal  injury  thereby,  for  which  ade- 
quate compensation  cannot  be  had  at  law,  may  have  an 
injunction  to  prevent  it, ' ' 64  or  he  may  maintain  an  action 
at  law  for  damages  against  the  officer  as  a  wrongdoer,  "In 
either  case,  if  the  officer  plead  the  authority  of  an  uncon- 
stitutional law  for  the  non-performance  or  violation  of 
his  duty,  it  will  not  prevent  the  issuing  of  a  writ.  An 
unconstitutional  law  will  be  treated  by  the  courts  as  null 
and  void. ' ' 65  In  conformity  with  this  principle,  it  has 
been  held  that  the  XI  Amendment  does  not  forbid  the 

63  U.  S.  v.  Peters,  5  Cr.  115. 

64  Per  Bradley,  J.,  in  Board  of  Liquidation  v.  McComb,  92  U.  S.  531,  541. 

65  Per  Bradley,  J.,  in  Board  of  Liquidation  v.  McComb,  92  U.  S.  541; 
Davis  v.  Gray,  16  Wall.  203;  McGahey  v.  Virginia,  135  U.  S.  662;  Hans 
v.  Louisiana,  134  id.  1;   Pennoyer  v.  McConnaughy,  140  id.  1;   Smyth  v. 
Ames,  169  id.  466;  Prout  v.  Starr,  188  id.  537;  cf.  Pitts  v.  McGhee,  172 
id.  516 ;  I.  C.  E.  v.  Adams,  180  id.  28.     In  Hans  v.  Louisiana,  supra,  Bradley, 
J.,  said,  p.  20:    "Although  the  obligations  of  a  state  rest  for  their  per- 
formance upon  its  honour  and  good  faith,  and  cannot  be  made  the  sub- 
jects of  judicial  cognizance  unless  the  state  consents  to  be  sued,  or  comes 
itself  into  court;  yet  where  property  or  rights  are  enjoyed  under  a  grant  or 
contract  made  by  a  state,  they  cannot  wantonly  be  invaded.      Whilst  the 
state  cannot  be  compelled  by  suit  to  perform  its  contracts,  any  attempt 
on  its  part  to  violate  property  or  rights  acquired  under  its  contracts,  may 
be  judicially  resisted;   and  any  law  impairing  the  obligation  of  contracts 
under  which  such  property  or  rights  are  held  is  void  and  powerless  to  affect 
their  enjoyment.77 


264  THE    JUDICIAL   POWER. 

courts  of  the  United  States  to  take  cognizance  of  a  cause 
wherein  a  federal  agency,  as,  for  instance,  a  national  bank, 
brings  suit  against  the  officers  of  a  state  to  enjoin  the 
enforcement  of  an  unconstitutional  law  of  the  state  taxing 
that  agency.66  It  has  also  been  held  that  state  officers 
may  be  enjoined  at  the  suit  of  a  holder  of  consolidated 
bonds  of  the  state  which  had  been  issued  under  an  agree- 
ment for  the  funding  of  the  debt  of  the  state,  from  issuing 
others  of  the  consolidated  bonds  in  violation  of  the  con- 
tract between  the  state  and  its  bondholders ; 67  and  that  an 
action  brought  by  a  taxpayer  against  an  officer  of  a  state 
to  recover  possession  of  property  which  that  officer  has 
wrongfully  seized  under  an  unconstitutional  law  of  the 
state  for  non-payment  of  taxes  is  an  action  against  that 
officer  as  a  wrongdoer,  and  not  such  an  action  as  is  pro- 
hibited by  the  XI  Amendment.68 

As  the  immunity  from  suit  is  a  personal  privilege,  the 
state  may  waive  that  privilege,  and  it  does  waive  it,  when, 
in  a  cause  pending  in  a  court  of  the  United  States,  in  which 
it  has  a  sufficient  interest  to  entitle  it  to  become  a  party 
defendant,  it  causes  an  appearance  to  be  entered  by  coun- 
sel on  its  behalf,  for  such  an  appearance  is  a  voluntary 

66  Osborn  v.  The  Bank  of  the  United  States,  9  Wheat.  738,  846. 

6T  Board  of  Liquidation  v.  McComb,  92  U.  S.  531. 

68  The  Virginia  Coupon  Cases,  114  U.  S.  269,  284.  Some  of  the  cases 
were  actions  of  trespass  or  detinue;  others  of  them  were  bills  in  equity  for 
an  injunction.  Bradley,  J.,  with  whom  concurred  Waite,  C.  J.,  and  Miller 
and  Gray,  JJ.,  dissented.  Upon  a  like  principle,  it  has  been  held  that 
officers  of  the  United  States  being  wrongfully  in  possession  of  land,  the  fact 
that  they  held  that  possession  not  for  themselves  but  for  the  government  of 
the  United  States  will  not  forbid  courts  to  take  jurisdiction  of  the  rightful 
owner's  action  to  recover  his  land,  nor  prevent  judgment  in  his  favour,  if 
his  title  be  made  out:  Meigs  v.  McClung's  Lessee,  9  Cr.  11;  Wilcox  v.  Jack- 
son, 13  Pet.  498 ;  Grisar  v.  McDowell,  6  Wall.  363 ;  Brown  v.  Huger,  21  How. 
305;  United  States  v.  Lee,  106  U.  S.  196.  In  Mitchell  v.  Harmony,  13 
How.  115,  and  in  Bates  v.  Clark,  95  U.  S.  204,  the  same  rule  was  applied 
in  actions  of  trespass  against  military  officers  of  the  United  States  for 
the  wrongful  seizure  of  certain  personal  property  of  the  plaintiffs,  in 
obedience  to  unlawful  orders  from  a  military  superior. 


EELATIONS    BETWEEN    FEDERAL   AND    STATE    COUETS.         265 

submission  to  the  jurisdiction  of  the  court.69  It  is  obvious 
that  the  XI  Amendment  does  not  affect  the  jurisdiction 
granted  by  the  III  Article  to  the  courts  of  the  United 
States  in  actions  wherein  a  foreign  state,  or  one  of  the 
United  States,  is  the  plaintiff  and  one  of  the  United  States 
is  the  defendant.70 

The  relations  between  the  federal  and  state  courts. 

116.  The  federal  supremacy  prevents  the  states  from 
regulating  the  process  or  practice  of  the  courts  of  the 
United  States  at  law,71  or  in  equity,72  or  in  causes  of 
criminal  cognizance,73  but  "the  laws  of  the  several  states, 
except  when  the  Constitution,  treaties,  or  statutes  of  the 
United  States  otherwise  require  or  provide,  shall  be  re- 
garded as  rules  of  decision  in  trials  at  common  law,  in 
the  courts  of  the  United  States  in  cases  where  they 
apply. ' ' 74  The  federal  supremacy  also  forbids  the  courts 
of  the  states  to  refuse  obedience  to  a  mandate  of.  the  Su- 
preme Court  of  the  United  States,  reversing  a  judgment 
of  a  state  court  in  a  cause  which  is  of  federal  cog- 
nizance;75 and  it  prevents  a  state  legislature  from 
annulling  by  statute  the  judgment  of  a  court  of  the  United 
States  in  a  cause  which  is  within  the  jurisdiction  of  the 

«  Clark  v.  Barnard,  108  U.  S.  436. 

70  U.  S.  v.  Texas,  143  U.  S.  621. 

nWayman  v.  Southard,  10  Wheat.  1;  Bank  of  U.  S.  v.  Halstead,  ibid. 
51 ;  Lincoln  v.  Power,  151  U.  S.  436. 

"Borer  v.  Chapman,  119  U.  S.  587;  Mississippi  Mills  v.  Cohn,  150  id. 
202 ;  Hollins  v.  B.  C.  &  I.  Co.,  ibid.  371. 

73  U.  S.  v.  Eeid,  12  How.  361. 

74  Act  of  24th  September,  1789,  c.  20,  sec.  34,  1  Stat.  92;  Eev.  Stat.  sec. 
721.     See  Field's  Federal  Courts,  p.  430.     The  general  principle  that  the 
lex    fori    governs    the    limitation    of    actions    applies    to    actions    brought 
originally  in  the  courts  of  the  United  States,  and  also  to  actions  removed 
thereto  from  the  courts  of  the  states:   Arnson  v.  Murphy,  109  U.  S.  238; 
Mitchell  v.  Clark,  110  id.  633. 

"Martin  v.  Hunter's  Lessee,  1  Wheat.  304. 


266  THE   JUDICIAL  POWER. 

court.76  While  a  state  cannot  confer  jurisdiction  on  a 
court  of  the  United  States,  yet  a  state  may  by  its  legisla- 
tion create  legal  and  equitable  rights  which  can  be  en- 
forced in  a  court  of  the  United  States  in  a  cause  whereof 
that  court  has  acquired  jurisdiction  by  reason  of  either 
the  citizenship  of  the  parties  or  the  federal  character  of 
the  subject-matter  of  litigation;  thus,  pilotage  being  a 
subject  of  admiralty  and,  therefore,  of  federal  jurisdic- 
tion, a  pilot  may  sue  in  a  court  of  the  United  States  to 
recover  pilotage  under  a  state  statute ; 77  and  the  right 
under  a  state  statute  to  recover  damages  for  a  death 
caused  by  negligence  is  enforcible  in  a  cause  between 
proper  parties  in  a  court  of  the  United  States ; 78  and  liens 
created  by  state  laws  in  favour  of  material  men  for  sup- 
plies furnished  to  vessels  in  their  home  ports  or  for  ma- 
terials furnished  to  ships  in  process  of  construction  may 
be  enforced  in  the  courts  of  the  United  States.79 

A  court  of  the  United  States  cannot  enjoin  proceedings 
in  a  court  of  a  state,80  save  in  aid  of  bankruptcy  proceed- 
ings pending  in  a  court  of  the  United  States,  or  as  a 
means  of  preventing  the  enforcement  in  a  court  of  a  state 

76  U.  S.  v.  Peters,  5  Or.  115. 

77  Hobart  v.  Drogan,  10  Pet.  108;  Ex  parte  McMel,  13  Wall.  236. 

78  Ky.  Co.  v.  Whitton,  13  Wall.  270. 

"Edwards  v.  Elliott,  21  Wall.  532;  The  Lottawanna,  ibid.  558;  U.  S. 
v.  P.-D.  M.  Co.,  176  U.  S.  317;  cf.  The  Eoanoke,  189  id.  185.  Where 
the  jurisdiction  of  a  court  of  the  United  States  has  attached,  a  party  to 
the  suit  who  refuses  or  neglects  to  obey  its  process  will  be  liable  in  damages 
to  any  party  injured  by  such  neglect  or  refusal:  Amy  v.  Supervisors,  11 
Wall.  136;  and  a  trustee  of  property  to  which  the  jurisdiction  of  a  court 
of  the  United  States  has  attached  will  be  held  personally  responsible  if, 
without  adequate  resistance,  he  surrenders  such  property  to  the  process  of 
a  court  of  a  state:  Chittenden  v.  Brewster,  2  Wall.  191.  See  also  In  re 
Watts  and  Sachs,  190  U.  S.  1. 

80  Diggs  v.  Wolcott,  4  Cr.  179 ;  Watson  v.  Jones,  13  Wall.  679 ;  Haines  v. 
Carpenter,  91  U.  S.  254;  Dial  v.  Eeynolds,  96  id.  340;  Leroux  v.  Hudson, 
109  id.  468;  Byers  v.  McAuley,  149  id.  608;  Harkrader  v.  Wadley,  172  id. 
148;  cf.  In  re  Neagle,  135  id.  1;  Cole  v.  Cunningham,  133  id.  107.  See 
also  In  re  Watts  and  Sachs,  190  id.  1. 


KELATIONS   BETWEEN    FEDERAL   AND   STATE    COUETS.         267 

of  a  judgment  entered  therein  after  a  cause  has  been 
properly  removed  to  a  court  of  the  United  States ; 81  nor 
can  the  courts  of  the  United  States  issue  writs  of  man- 
damus to  courts  of  the  states,  except  to  compel  the  per- 
formance of  purely  ministerial,82  and  not  judicial,83  duties. 

Chattels  taken  in  execution  under  the  judgment  of  a 
court  of  a  state  and  delivered  to  a  claimant  upon  his  giving 
bond  therefor  cannot  be  seized  by  a  marshal  under  the 
process  of  a  court  of  the  United  States.84  A  court  of  the 
United  States  exercising  jurisdiction  in  bankruptcy  cannot 
divest  liens  upon  the  bankrupt's  property  created  by  the 
judgments,  either  interlocutory  or  final,  of  the  courts  of 
the  states ; 85  the  assets  of  the  estate  of  an  insolvent  dece- 
dent in  process  of  judicial  administration  under  the  order 
of  a  probate  court  of  a  state  are  not  subject  to  levy  under 
an  execution  issued  by  a  court  of  the  United  States;86 
and  the  trustee  appointed  by  a  court  of  a  state  under  a 
state  statute  to  liquidate  a  corporation  whose  charter  has 
been  forfeited  cannot  be  sued  in  a  court  of  the  United 
States  by  creditors  of  the  corporation  to  compel  his  allow- 
ance of  a  claim  against  the  corporation.87 

As  Catron,  J.,  said  in  the  judgment  in  the  case  of  The 
Bank  of  Alabama  v.  Dalton,88  "In  administering  justice 
.  .  .  the  states  of  this  Union  act  independently  of  each 
other,  and  their  courts  are  governed  by  the  laws  and 
municipal  regulations  of  that  state,  where  a  remedy  is 

81  French  v.  Hay,  22  Wall.  250;  Dietzsch  v.  Huidekoper,  103  U.  S.  494. 

82  Riggs  v.  Johnson  County,  6  Wall.  166 ;  Amy  v.  Supervisors,  11  id.  136 ; 
Supervisors  v.  U.  S.,  154  U.  S.  576. 

83  In  re  Blake,  175  U.  S.  114.     See  also  The  Mayor  v.  Lord,  9  Wall.  409; 
The  Supervisors  v.  Durant,  ibid.  415 ;  Bath  County  v.  Amy,  13  id.  244. 

84  Hagan  v.  Lucas,  10  Pet.  400. 

85  Peck  v.  Jenness,  7  How.  612. 

86  Williams  v.  Benedict,  8  How.  107. 

87Peale  v.  Phipps,  14  How.  368.     See  also  Vaughan  v.  Northup,  15  Pet. 
1 ;  WiswaU  v.  Sampson,  14  How.  52 ;  cf.  Erwin  v.  Lowry,  7  How.  172. 
88  9  How.  522,  527. 
18 


268  THE    JUDICIAL   POWEK. 

sought,  unless  they  are  controlled  by  the  Constitution  of 
the  United  States,  or  by  laws  enacted  under  its  authority. ' ' 
The  most  important  of  the  restraints  imposed  by  the  Con- 
stitution upon  the  exercise  of  judicial  jurisdiction  by  the 
states  result  from  the  grant  in  Article  III  of  the  Constitu- 
tion, of  judicial  power  to  the  United  States  over  certain 
subjects  of  jurisdiction,  and  from  the  power  of  Congress 
to  render  that  jurisdiction  exclusive.  Nevertheless,  as 
the  Constitution,  laws,  and  treaties  of  the  United  States 
are  "the  supreme  law  of  the  land,"  the  states,  wherever 
Congress  has  not,  by  legislation  within  the  limits  of  its 
constitutional  powers,  excepted  any  subject  from  the  juris- 
diction of  their  courts,  may  exercise  jurisdiction  therein, 
and,  in  such  cases,  rights  arising  under  the  Constitution, 
laws,  and  treaties  of  the  United  States  may  be  adminis- 
tered, subject,  of  course,  to  the  appellate  jurisdiction  of 
the  Supreme  Court  of  the  United  States,  and  to  the  power 
of  removal  to  the  federal  courts  of  the  first  instance; 
thus,  a  tribunal  constituted  by  a  state  may  enforce  the 
militia  laws  of  the  United  States ; 89  and  an  assignee  in 
bankruptcy  may  sue  in  a  court  of  a  state  to  recover  the 
assets  of  the  bankrupt.90  But  where  Congress  has  ex- 
pressed its  will  that  the  courts  of  the  United  States  shall 
exercise  exclusive  jurisdiction  over  any  subject-matter 
which  is  included  within  the  constitutional  grant  of 
judicial  power  to  the  United  States,  the  courts  of  the  states 
cannot  directly  exercise  judicial  jurisdiction  over  such 
subject-matter.  Upon  this  principle,  a  court  of  a  state 
cannot  take  cognizance  of  an  act  declared  to  be  criminal 
by  the  statutes  of  the  United  States,  unless  that  act  be 

89  Houston  v.  Moore,  5  Wheat.  1. 

^Claflin  v.  Houseman,  93  U.  S.  130;  Teal  v.  Felton,  12  How.  284,  re- 
ferred to  by  Bradley,  J.,  93  U.  S.  142,  was  an  action  of  trover  for  a  news- 
paper which  a  postmaster  wrongfully  refused  to  deliver.  See  also  Eyster 
v.  Gaff,  91  U.  S.  521;  Ex  parte  Christy,  3  How.  292,  318,  319;  Nugent  v. 
Boyd,  ibid.  426 ;  Williams  v.  Heard,  140  U.  S.  529. 


RELATIONS    BETWEEN    FEDERAL   AND    STATE    COURTS.         269 

also  an  offense  against  the  laws  of  the  state.91  A  state 
court  cannot  take  jurisdiction  of  a  cause  of  admiralty 
cognizance,92  such  as  a  proceeding  in  rem  founded  upon  a 
contract  for  the  transportation  of  passengers  by  sea,  or 
upon  a  collision,93  or  upon  a  contract  of  affreightment,94 
but  a  state  court  may  take  jurisdiction  of  an  action  in 
personam  for  mariners '  wages,95  or  of  a  preceding  in  rem 
founded  upon  a  lien  given  by  a  state  statute  for  materials 
supplied  in  building  a  ship,96  for  such  actions  are  not 
necessarily  of  admiralty  cognizance.  A  state  court  can- 
not take  jurisdiction  of  an  action  at  law  against  a  foreign 
consul.97  A  state  court  cannot  take  jurisdiction  in  patent 
causes,  nor  determine  the  validity  of  a  patent,  or  a  ques- 
tion of  infringement,98  but  a  state  court  may  incidentally 
pass  upon  the  validity  of  a  patent,  as,  for  instance,  where 

91  There  is  a  concurrent  jurisdiction  over  crimes,  when  the  criminal  act 
is  an  offense  against  the  laws  of  both  the  United  States  and  of  the  states; 
thus,  a  state  may  punish  the  offense  of  uttering  or  passing  false  coin  as  a 
fraud  practiced  on  its  citizens:  Fox  v.  Ohio,  5  How.  432,  and  the  United 
States  may  punish  the  same  act  as  a  crime  against  it:   United  States  v. 
Marigold,  9  How.  560.     In  the  same  way,  a  state  might  have,  before  the 
adoption  of  the  XIII  Amendment,  punished  the  harbouring  of  a  fugitive 
slave:   Moore  v.  Illinois,  14  How.  13,  while  the  same  act  could  have  been 
punished   in   the   courts   of   the   United   States   as   an  offense   against   the 
fugitive  slave  legislation   of   Congress.      So   also   a  state  may  punish   the 
forging  of   a  promissory   note,   although   the   forger   commits  the   further 
crime  of  making  false  entries   concerning  such  notes  on  the  books  of  a 
national  bank:   Cross  v.  North  Carolina,  132  U.  S.  131.     And  a  state  may 
punish  the  murder  of  a  locomotive  engineer,  although  his  death  be  caused 
by   the   derailment   of  a  train   carrying  the  mails  of  the  United  States: 
Crossley  v.  California,  168  U.  S.  640.     But  it  may  not  punish  an  officer 
of  a  national  bank  who,  knowing  that  the  bank  is  insolvent,  nevertheless 
receives  a  deposit:  Easton  v.  Iowa,  188  U.  S.  220. 

92  The  Moses  Taylor,  4  Wall.  411;  Moran  v.  Sturges,  154  U.  S.  256. 

93  The  Hine  v.  Trevor,  4  Wall.  555. 

94  The  Belfast,  7  Wall.  624. 

95  Leon  v.  Galceran,  11  Wall.  185. 

96  Edwards  v.  Elliott,  21  Wall.  532. 

97  Davis  v.  Packard,  7  Pet.  276. 

^Eev.    Stat.,    sec.    711.     Per    Bradley,    J.,    in    Claflin    v.    Houseman,    93 
U.  S.  140. 


270  THE   JUDICIAL   POWEE. 

it  is  questioned  in  an  action  for  the  price  of  the  patent." 
The  distinction  running  through  the  cases  is,  that,  where 
Congress  has  excepted  from  the  action  of  the  courts  of  the 
states  any  subject-matter  of  federal  jurisdiction  as  desig- 
nated in  the  Constitution,  the  courts  of  the  states  thence- 
forth cannot  directly,  but  may  indirectly  and  collaterally, 
act  upon  such  subject-matter.  The  courts  of  the  states 
cannot  issue  an  injunction  before  final  decree,  nor  an 
attachment  on  mesne  process,  against  a  national  bank.100 
The  federal  supremacy  forbids  a  court  of  a  state  to  issue  a 
mandamus  to  an  officer  of  the  United  States,1  or  to  try  a 
federal  officer  for  an  act  done  by  him  in  the  discharge  of 
his  official  duties,2  or,  by  its  process,  to  take  in  execution 
goods  imported  into  a  port  of  the  United  States,  but  not 
yet  entered  at  the  custom-house  for  payment  of  duties 
to  the  United  States,3  or  goods,  which,  having  been  seized 
for  violation  of  the  revenue  laws  of  the  United  States,  are 
in  the  custody  of  a  marshal  of  the  United  States.4  Nor 
can  a  court  of  a  state  take  jurisdiction  of  a  suit  to  de- 
termine whether  or  not  property  has  been  rightfully 
forfeited  under  the  laws  of  the  United  States.5  Nor  can 
it  take  jurisdiction  of  a  complaint  for  perjury  in  testifying 
before  a  local  notary  public  upon  a  contested  con- 
gressional election.6  Nor  can  a  court  of  a  state  by  injunc- 
tion restrain  the  execution  of  a  judgment  of  a  court  of 
the  United  States ; 7  nor,  under  a  state  insolvent  law, 

90  See  the  judgment  of  Gray,  J.,  in  Nash  v.  Lull,  102  Mass.  60;  cf.  Marsh 
v.  N.,  S.  &  Co.,  140  IT.  S.  344;  Holt  v.  I.  Mfg.  Co.,  176  id.  68. 
100  Eev.  Stat.  5242;  Pacific  Nat.  Bank  v.  Mixter,  124  U.  S.  721. 
1McClung  v.  Silliman,  6  Wheat.  598. 

2  In  re  Neagle,  135  U.  S.  1;  Etheridge  v.  Sperry,  139  id.  266;  Ohio  v. 
Thomas,  173  id.  276;  Boske  v.  Comingore,  177  id.  459.     See  also  Gableman 
v.  P.,  D.  &  E.  By.,  179  id.  335. 

3  Harris  v.  Dennie,  3  Pet.  292. 

4  Slocum  v.  Mayberry,  2  Wheat.  1. 

5  Gelston  v.  Hoyt,  3  Wheat.  246. 

6  In  re  Loney,  134  U.  S.  372. 

7  McKim  v.  Voorhies,  7  Cr.  279. 


KELATIONS    BETWEEN    FEDEKAL    AND    STATE    COURTS.         271 

regulate  the  distribution  of  assets  of  an  insolvent  national 
bank ;  8  nor  discharge  a  defendant  held  in  custody  under  a 
capias  ad  satis  faciendum  issued  by  a  court  of  the  United 
States ; 9  nor  replevy  property  taken  in  execution  under 
a  judgment  of  a  court  of  the  United  States ; 10  nor  order 
the  release,  after  a  hearing  on  habeas  corpus,  of  a  prisoner 
held  in  custody  by  an  officer  of  the  United  States  under  a 
warrant  of  commitment  from  a  commissioner  of  a  circuit 
court  of  the  United  States  upon  a  charge  of  the  commis- 
sion of  an  offense  against  the  laws  of  the  United  States, 
or  of  a  prisoner  held  in  custody  by  the  United  States  after 
a  trial  and  conviction  in  a  court  of  the  United  States  of 
an  offense  against  the  laws  of  the  United  States;11  nor 
release  upon  habeas  corpus  an  enlisted  soldier  in  the 
army  of  the  United  States,  detained  in  custody  under 
the  order  of  his  commanding  officer.12  Nor  can  an  at- 
tachment of  a  debt  by  the  process  of  a  state  court,  after 
the  commencement  of  a  suit  upon  that  debt  in  a  court 
of  the  United  States  bar  the  plaintiff's  recovery  in  that 
suit ; 13  nor  can  the  pendency  of  state  insolvent  proceed- 
ings be  set  up  as  a  bar  to  suits  in  the  courts  of  the  United 
States  brought  by  parties  who  are  constitutionally  entitled 
to  sue  therein.14 


8  Davis  v.  Elmira  Savings  Bank,  161  U.  S.  275;   cf.  Earle  v.  Conway, 
178  id.  456. 

•Duncan  v.  Darst,  1  How.  301. 

10  Freeman  v.  Howe,  24  How.  450;  Covell  v.  Heyman,  111  IT.  S.  176. 

11  Ableman  v.  Booth,  21  How.  506. 

12  Tarble  's  Case,  13  Wall.  397.     A  state  court  may,  nevertheless,  by  pro- 
cess  of   habeas   corpus,   inquire  into   the  legality  of   the   detention  of   a 
person,  who,  having  been  arrested  as  a  fugitive  from  the  justice  of  another 
state,   is   detained   in   custody   by   an   agent  of   that   other   state   under   a 
warrant  issued  by  the   governor  of  the  state  within  whose  territory  the 
alleged  fugitive  has  come:  Eobb  v.  Connolly,  111  U.  S.  624. 

13  Wallace  v.  McConnell,  13  Pet.  136. 

"Suydam  v.  Broadnax,  14  Pet.  67;  Hyde  v.  Stone,  20  How.  170;  Green 
v.  Creighton,  23  id.  90. 


272  THE    JUDICIAL   POWER. 

In  the  cases  of  persons  who,  or  of  property  which,  may 
be  subject  to  the  jurisdiction  of  the  courts  of  the  United 
States,  and  also  to  that  of  the  courts  of  the  states,  that 
jurisdiction,  which  first  actually  attaches  either  to  the 
person  or  the  property,  will  retain  control  and  cannot  be 
divested  by  process  issued  from  the  other  jurisdiction.15 
An  officer  who,  in  executing  the  process  issued  by  a  court 
in  a  cause  within  its  jurisdiction,  seizes  property  which 
that  process  specifically  designates,  is  not  liable  to  action 
therefor  in  a  court  of  another  jurisdiction;  but  an  officer 
who,  under  a  judgment  in  personam,  seizes  property  not 
specifically  designated  in  the  process  is  liable,  and  may 

16  Slocum  v.  Mayberry,  2  Wheat.  1 ;  Smith  v.  Mclver,  9  id.  532 ;  Hagan  v. 
Lucas,  10  Pet.  400;  Wallace  v.  McConnell,  13  id.  136;  Erwin  v.  Lowry, 
7  How.  172;  Peck  v.  Jenness,  ibid.  612;  Williams  v.  Benedict,  8  id.  107; 
Wiswall  v.  Sampson,  14  id.  52;  Peale  v.  Phipps,  ibid.  368;  Pulliam  v. 
Osborne,  17  id.  471;  Taylor  v.  Carryl,  20  id.  583;  Freeman  v.  Howe,  24  id. 
450;  Covell  v.  Heyman,  111  U.  S.  176;  Heidritter  v.  Elizabeth  Oil-cloth 
Co.,  112  id.  294;  Cross  v.  North  Carolina,  132  id.  131;  E.  G.  E.  v. 
Gomila,  ibid.  478;  L.  C.  Co.  v.  McCreery,  141  id.  475;  In  re  Tyler,  149 
id.  164;  Byers  v.  McAuley,  ibid.  608;  Central  Nat.  Bank  v.  Stevens,  169  id. 
432;  Harkrader  v.  Wadley,  172  id.  148;  White  v.  Schloerb,  178  id.  542; 
cf.  Etheridge  v.  Sperry,  139  id.  266;  Bock  v.  Perkins,  ibid.  628;  Moran 
v.  Sturges,  154  id.  256;  Earle  v.  Pennsylvania,  178  id.  449;  Earle  v.  Con- 
way,  ibid.  456.  In  Covell  v.  Heyman,  111  U.  S.  182,  Matthews,  J.,  said: 
"The  forbearance  which  courts  of  co-ordinate  jurisdiction,  administered 
under  a  single  system,  exercise  toward  each  other,  whereby  conflicts  are 
avoided,  by  avoiding  interference  with  the  process  of  each  other,  is  a 
principle  of  comity,  with,  perhaps,  no  higher  sanction  than  the  utility  which 
comes  from  concord;  but  between  state  courts  and  those  of  the  United 
States  it  is  something  more.  It  is  a  principle  of  right  and  of  law,  and, 
therefore,  of  necessity.  It  leaves  nothing  to  discretion  or  mere  conveni- 
ence. These  courts  do  not  belong  to  the  same  system,  so  far  as  their 
jurisdiction  is  concurrent;  and  although  they  co-exist  in  the  same  space, 
they  are  independent,  and  have  no  common  superior.  They  exercise  juris- 
diction, it  is  true,  within  the  same  territory,  but  not  in  the  same  plane;  and 
when  one  takes  into  its  jurisdiction  a  specific  thing,  that  res  is  as  much 
withdrawn  from  the  judicial  power  of  the  other  as  if  it  had  been  carried 
physically  into  a  different  territorial  sovereignty.  To  attempt  to  seize  it 
by  a  foreign  process  is  futile  and  void.  The  regulation  of  process,  and  the 
decision  of  questions  relating  to  it,  are  part  of  the  jurisdiction  of  the 
court  from  which  it  issues." 


XIV   AMENDMENT  — STATE    JUDICIAL   PROCEEDINGS.        273 

be  sued  therefor  in  a  court  of  another  jurisdiction,16  and 
the  party  injured  by  such  a  wrongful  act  by  a  marshal  of 
the  United  States  may  sue  on  the  marshal's  official 
bond; 17  or,  he  may  file  a  bill  in  the  federal  court  to  re- 
strain or  regulate  its  judgment.18 

The  XIV  Amendment  as  affecting  state  judicial  pro- 
ceedings. 

117.  The  exercise  of  judicial  jurisdiction  by  the  states 
is  also  restricted  by  that  provision  of  the  XIV  Amend- 
ment which  declares,  "Nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property  without  due  process 
of  law."  Within  the  meaning  of  the  Constitution,  this 
due  process  of  law  is  secured  when  the  laws  operate  on 
all  alike  and  no  one  is  subjected  to  an  arbitrary  exercise 
of  the  powers  of  government.19  The  provision  "does  not 
control  mere  forms  of  procedure  in  the  state  courts  or 
regulate  practice  therein.  All  its  requirements  are  com- 
plied with  provided  in  the  proceedings  which  are  claimed 
not  to  have  been  due  process  of  law  the  person  con- 
demned has  had  sufficient  notice  and  adequate  opportunity 
has  been  afforded  him  to  defend."20  In  proceedings  in 
personam  service  must  be  made  within  the  state  unless 
the  defendant  voluntarily  appears ; 21  in  proceedings  in 

16  Slocum  v.  Mayberry,  2  Wheat.  1 ;  Day  v.  Gallup,  2  Wall.  97 ;  Buck  v. 
Colbath,  3  id.  334. 
"Lammon  v.  Feusier,  111  U.  S.  17. 

18  Krippendorf  v.  Hyde,  110  U.  S.  276. 

19  Caldwell  v.  Texas,  137  U.  S.  692 ;  Leeper  v.  Texas,  139  id.  462 ;  Giozza 
v.   Tiernan,   148  id.   657;   I.   C.  Ey.  v.  Iowa,   160  id.  389;    Tonawanda  v. 
Lyon,  181  id.  389 ;  Detroit  v.  Parker,  ibid.  399. 

20  L.  &  N.  E.  v.  Schmidt,  177  U.  S.  230;  see  also  In  re  Kemmler,  136  id. 
436;  of.  Simon  v.  Craft,  182  id.  427. 

21  Boswell  's  Lessee  v.  Otis,  9  How.  336 ;  Harris  v.  Hardeman,  14  id.  334 ; 
Nations  v.  Johnson,  24  id.  195;  York  v.  Texas,  137  U.  S.  15;  Kauffman  v. 
Wooters,  138  id.  285;  Dewey  v.  Des  Moines,  173  id.  193;  Eoller  v.  Holly, 
176  id.  398;  cf.  Gallup  v.  Schmidt,  183  id.  300. 


274  THE   JUDICIAL   POWEK. 

rem  the  res  must  be  within  the  jurisdiction  and  construc- 
tive notice  of  the  proceedings  must  be  given.22  A  state 
may  regulate  its  judicial  proceedings,23  provided  that  it 
does  not  discriminate  against  classes  of  citizens.  A  state 
may  therefore  restrain  or  take  away  the  right  of  trial  by 
jury  in  civil  cases ;  24  or  it  may  permit  the  prosecution  of 
crimes  by  information  after  examination  and  commitment 
by  a  magistrate ; 25  or  it  may  provide  for  the  trial  of 
criminal  cases  by  a  struck  jury,26  or  by  a  jury  composed  of 
eight  instead  of  twelve  jurors ; 27  or  it  may  permit  a  person 
charged  with  murder  to  waive  the  right  of  trial  by  jury ; 28 
or  it  may  permit  a  court  to  enjoin  the  commission  of  a 
crime  and  then  punish  its  commission  by  contempt  pro- 
ceedings without  the  intervention  of  a  jury ; 29  or  it  may 
even  provide  that  any  person  may  summarily  destroy, 
without  judicial  proceedings,  fishing  nets  that  have  been 
placed  in  public  streams  in  defiance  of  statute.30 

A  state  may  freely  prescribe  the  jurisdiction  of  its 

22  Arndt  v.  Griggs,  134  U.  S.  316 ;  see  also  Hanover  Nat.  Bank  v.  Moyses, 
186  id.  181;  cf.  Eo  Bards  v.  Lamb,  127  id.  58.     But  a  court  may  not,  by 
any  proceedings,  grant  administration  of  the  estate  of  a  living  person :  Scott 
v.  McNeal,  154  U.  S.  34. 

23  Duncan  v.  Missouri,  152  U.  S.  377;   Holden  v.  Hardy,  169  id.  366; 
Backus  v.  F.  S.  U.  D.  Co.,  ibid.  557;  Brown  v.  New  Jersey,  175  id.  172; 
L.  &  N.  E.  v.  Schmidt,  177  id.  230;  Freeland  v.  Williams,  131  id.  405; 
L.  &  N.  E.  v.  Woodson,  134  id.  614;   Natal  v.  Louisiana,  139  id.  621; 
Andrews   v.   Swartz,    156   id.   272;    Lowe   v.    Kansas,    163   id.   81;    Jones 
v.  Brim,  165  id.  180;  Nobles  v.  Georgia,  168  id.  398.     See  also  Minder  v. 
Georgia,  183  id.  559. 

24  Walker  v.  Sauvinet,  92  U.  S.  90;  Church  v.  Kelsey,  121  id.  282;  cf. 
I.  C.  Ey.  v.  Iowa,  160  id.  389. 

^Hurtado  v.  California,  110  U.  S.  517;  McNulty  v.  California,  149  id. 
645;  Hodgson  v.  Vermont,  168  id.  262;  Bolln  v.  Nebraska,  176  id.  83; 
Maxwell  v.  Dow,  ibid.  581;  Davis  v.  Burke,  179  id.  399. 

26  Brown  v.  New  Jersey,  175  U.  S.  172. 

27  Maxwell  v.  Dow,  176  U.  S.  581. 

28  Hallinger  v.  Davis,  146  U.  S.  314. 

29  Eilenbecker  v.  Plymouth  County,  134  U.  S.  31 ;  cf.  In  re  Debs,  158  id. 
564;  Tinsley  v.  Anderson,  171  id.  101. 

^Lawtrn  v.  Steele,  152  U.  S.  133. 


XVI   AMENDMENT— STATE   JUDICIAL   PROCEEDINGS.        275 

several  courts,  both  as  to  their  territorial  limits  and  the 
subject-matter,  amount  and  finality  of  their  respective 
judgments  and  decrees,  and  it  may  vest  in  one  court  final 
appellate  jurisdiction  over  the  courts  of  certain  counties, 
and  in  another  court  the  like  jurisdiction  over  other 
counties.31  It  may,  in  providing  for  local  prohibition  of 
retail  liquor  selling,  leave  the  word  "retail"  to  judicial 
definition,  and  the  amount  of  the  penalty  to  judicial  dis- 
cretion.32 A  statute  of  a  state  which,  as  construed  by  its 
courts,  provides  that  a  person  called  as  a  juror  in  the  trial 
of  a  criminal  cause  is  not  to  be  disqualified  because  he  has 
formed  an  opinion  or  impression  based  upon  rumor  or 
newspaper  statements,  if  he  shall  upon  oath  state  that  his 
verdict  will  be  based  only  on  the  evidence  at  the  trial,  does 
not  deprive  the  prisoner  tried  by  such  jurors  of  his  life, 
liberty,  or  property  without  due  process  of  law.33  And  in 
a  criminal  trial,  upon  proof  of  non-residence,  permanent 
absence,  and  inability  to  procure  the  attendance  of  a  wit- 
ness, the  state  may  put  in  evidence  the  deposition  of  such 
witness,  taken  upon  the  preliminary  examination  before  a 
committing  magistrate  when  defendants  were  present  and 
their  counsel  was  afforded  opportunity  to  cross-examine.34 
The  Amendment  does  not  interfere  with  a  state's  regula- 
tion of  the  remedies  afforded  to  creditors  of  its  municipali- 
ties for  the  collection  of  their  debts.35  But  due  process  of 
law  is  denied  by  a  statutory  requirement  that  a  master's 
deed  be  taken  out  by  the  purchaser  at  a  foreclosure  sale 
within  a  specified  time,  where  failure  to  comply  with  such 
requirement  is  held  by  the  highest  state  court  to  destroy 

31  Missouri  v.  Lewis,  101  U.  S.  22 ;  Duncan  v.  Missouri,  152  id.  377 ;  Moore 
v.  Missouri,  159  id.  673. 

32  Ohio  v.  Dollison,  194  U.  S.  445. 

33  Spies  v.  Illinois,  123  U.  S.  131. 

34  West  v.  Louisiana,  194  U.  S.  258. 

85  Commissioners   of   Tippecanoe  v.  Lucas,   93   U.    S.    108;    Louisiana  v. 
New  Orleans,  109  id.  285. 


276  THE   JUDICIAL   POWER. 

the  rights  of  the  mortgagee  in  possession  after  condition 
broken,  and  to  entitle  the  mortgagor,  without  payment  of 
his  debt,  to  recover  possession  in  ejectment.36 

The  Amendment  being  directed  against  state  legislation 
and  not  against  a  judicial  misconstruction  of  such  legisla- 
tion by  the  courts  of  the  state,  when  a  state  legislature  has 
enacted  laws  for  the  government  of  its  courts,  which,  if 
followed,  will  furnish  all  parties  with  the  needed  protec- 
tion to  life,  liberty,  and  property,  it  has  performed  its 
constitutional  duty,  and  if  one  of  its  courts,  acting  within 
its  jurisdiction,  make  an  erroneous  decision,  the  state 
cannot  be  deemed  guilty  of  violating  the  Amendment; 
thus,  where  a  state  statute  required  of  all  guardians  the 
giving  a  bond  before  selling  their  wards'  real  estate, 
the  fact  that  a  court  permitted  a  sale  to  be  made  without 
requiring  the  giving  of  such  a  bond  is  not  a  violation  of  the 
Amendment;37  nor  is  due  process  of  law  denied  where 
the  court  permits  an  irregularity  in  the  polling  of  the 
jury  in  a  criminal  trial,  the  irregularity  working  no  injury 
to  the  defendant ; 38  nor  is  due  process  of  law  denied 
where  the  court  refuses  a  jury  trial  in  civil  proceedings, 
even  though  such  mode  of  trial  be  required  by  statute ; 39 
nor  do  mere  errors  in  the  administration  of  a  statute 
afford  constitutional  grounds  for  the  reversal  of  a  judg- 
ment.40 On  the  same  principle,  the  constitutional  require- 
ment is  not  violated  when  an  accused  person  is  tried  and 
sentenced  to  imprisonment  by  a  judge  de  facto  of  a  court 
de  jure.41 

36  Bradley  v.  Lightcap,  195  U.  S.  1. 

37  Arrowsmith  v.  Harmoning,  118  U.  S.  194. 
88  Cross  v.  North  Carolina,  132  U.  S.  131. 
39 1.  C.  Ey.  v.  Iowa,  160  U.  S.  389. 

40  Lent  v.  Tillson,  140  U.  S.  316;  B.  T.  Co.  v.  B.  B.  E.,  151  id.  137.     See 
also  Marrow  v.  Brinkley,  129  id.  178;  In  re  Converse,  137  id.  624;  C.  L.  Co. 
v.  Laidley,  159  id.  103;   Hooker  v.  Los  Angeles,  188  id.  314;  Arbuckle  v. 
Blackburn,  191  id.  405. 

41  In  re  Manning,  139  U.  S.  504. 


XVI   AMENDMENT— STATE   JUDICIAL   PROCEEDINGS.        277 

But  the  phrase  "due  process  of  law"  does  not  neces- 
sarily mean  a  judicial  proceeding.  The  nation  from 
whom  we  inherit  that  phrase  has  never  relied  upon  the 
courts  of  justice  for  the  collection  of  her  taxes,  though 
she  passed  through  a  successful  revolution  in  resistance 
to  unlawful  taxation.42  Due  process  of  law  is  secured  in 
the  procedure  for  the  collection  of  assessments  and  taxes,43 
and  in  the  exercise  of  the  right  of  eminent  domain,44  if 
provision  be  made  for  a  mode  of  confirming  and  contest- 
ing the  charge  thus  imposed,  with  such  notice  to  the  per- 
son, or  such  proceedings  in  regard  to  the  property,  as  is 
appropriate  to  the  nature  of  the  case.45  It  has  also  been 

42  Palmer  v.  McMahon,  133  U.  S.  660. 

43  McMillen  v.  Anderson,  95  U.  S.  37 ;  Davidson  v.  New  Orleans,  96  id. 
97;   Kelly  v.  Pittsburgh,  104  id.  78;   Hagar  v.  Keclamation  District,  111 
id.  701;  Head  v.  A.  Mfg.  Co.,  113  id.  9;  Wurts  v.  Hoagland,  114  id.  606; 
Kentucky  E.  Tax  Cases,  115  id.  321;   Spencer  v.  Merchant,  125  id.  345; 
Walston  v.  Nevin,   128  id.  578;  Lent  v.  TiUson,  140  id.  316;   Paulsen  v. 
Portland,  149  id.  30 ;  P.,  C.,  C.  &  St.  L.  Ey.  v.  Backus,  154  id.  421 ;  W.  & 
St.  P.  L.  Co.  v.  Minnesota,  159  id.  526;   Fallbrook  Irr.  Dist.  v.  Bradley, 
164  id.  112;  M.  &  M.  Bank  v.  Pennsylvania,  167  id.  461;  King  v.  Mullins, 
171  id.   404;    B.   B.   &  B.  C.  E.   v.  New  Whatcom,   172  id.   314;    Weyer- 
haueser  v.  Minnesota,  176  id.  550;   French  v.  B.  A.  P.  Co.,  181  id.  324; 
Detroit  v.  Parker,  ibid.  399 ;  Gallup  v.  Schmidt,  183  id.  300 ;  King  v.  Port- 
land,  184  id.  61;   Voigt  v.  Detroit,  ibid.   115;    Goodrich  v.  Detroit,  ibid. 
432;    Turpin  v.  Lemon,  187  id.  51;    Glidden  v.  Harrington,   189  id.  255; 
Hibben  v.  Smith,  191  id.  310;  Leigh  v.  Green,  193  id.  79;   cf.  Carson  v. 
Brockton  Sewerage  Com.,  182  id.  398;  League  v.  Texas,  184  id.  156.     And 
a  state  may  provide  that  a  proposed  improvement  shall  not  be  made  if 
a  protest  is  filed  by  a  majority  of  resident  owners  of  property  liable  to 
assessment  therefor,  although  no  such  privilege  of  protest  is  afforded  non- 
resident owners,  where  there  is  no  discrimination  in  assessing  for  the  im- 
provement: Field  v.  B.  A.  P.  Co.,  194  U.  S.  618. 

"Pearson  v.  Yewdall,  95  U.  S.  294;  Huling  v.  K.  V.  Ey.  &  Imp.  Co., 
130  id.  559;  K.  W.  P.  Co.  v.  G.  B.  &  M.  C.  Co.,  142  id.  254;  L.  I.  W.  S.  Co.  v. 
Brooklyn,  166  id.  685;  Backus  v.  F.  S.  U.  D.  Co.,  169  id.  557;  Hooker  v. 
Los  Angeles,  188  id.  314. 

46  It  may  not  tax  a  franchise  granted  by  another  state :  L.  &  J.  F.  Co. 
v.  Kentucky,  188  U.  S.  385.  The  bare  observance  of  legal  forms  is  in- 
sufficient where  the  procedings  are  manifestly  fraudulent:  C.,  B.  &  Q.  E. 
v.  Chicago,  166  U.  S.  226;  cf.  Fallbrook  Irr.  Dist.  v.  Bradley,  164  id.  112, 
168.  And  compensation  must  be  made  or  secured  when  private  property 
is  taken  for  public  use:  L.  I.  W.  S.  Co.  v.  Brooklyn,  166  id.  685;  Norwood 


278  THE   JUDICIAL  POWER. 

held  that  a  state  may  by  statute  prohibit  the  manufacture 
of  liquors ; 46  and  it  may  prohibit  their  sale  in  saloons  to 
women ; 47  it  may  regulate  the  hours  of  labour  of  persons 
employed  in  hazardous  occupations ; 48  it  may  prohibit  the 
waste  of  natural  gas  and  oil ; 49  it  may  fix  a  reasonable 
limit  upon  the  rates  which  may  charged  by  railway,50 
grain  elevator,51  and  water  supply52  companies;  it  may 
impose  special  liabilities  upon  railroad  companies ; 53  it 
may  require  practitioners  of  medicine  to  undergo  ex- 
aminations as  to  their  attainments ; 54  it  may  reduce  the 
rate  of  interest  upon  judgments  previously  obtained  in  its 
courts,55  it  may  provide  that  an  insurer  cannot,  in  an 
action  upon  a  policy  of  insurance,  deny  that  the  value  of 

v.  Baker,  172  id.  269;  cf.  K.  W.  P.  Co.  v.  G.  B.  &  M.  C.  Co.,  142  id.  254;  Eld- 
ridge  v.  Trezevant,  160  id.  452;  H.  Bridge  Co.  v.  Henderson  City,  173  id. 
592;  A.  Ey.  v.  New  York,  176  id.  335;  O.  O.  Co.  v.  Indiana,  177  id.  190; 
Williams  v.  Parker,  188  id.  491.  The  XIV  Amendment,  unlike  the  V 
Amendment,  does  not  contain  an  express  provision  that  just  compensation 
shall  be  rendered. 

"Mugler  v.  Kansas,  123  U.  S.  623;  Kidd  v.  Pearson,  128  id.  1. 

47  Cronin  v.  Adams,  192  U.  S.  108. 

48  Holden  v.  Hardy,  169  U.  S.  366.     And  it  may  limit  the  hours  of  labour 
on  work  thereafter  contracted  for  by  its  municipalities :  Atkin  v.  Kansas,  191 
U.  S.  207. 

49  O.  O.  Co.  v.  Indiana,  177  U.  S.  190. 

50  Dow  v.  Beidelman,  125  U.  S.  680;  N.,  C.  &  St.  L.  By.  v.  Alabama,  128 
id.  96;   C.  &  G.  T.  Ey.  v.  Wellman,  143  id.  339;   St.  L.  &  S.  F.  Ey.  v. 
Gill,  156  id.  649;  C.,  M.  &  St.  P.  Ey.  v.  Tompkins,  176  id.  167;  cf.  G.,  M. 
&  St.  P.  Ey.  v.  Minnesota,  134  id.  418;  M.  E.  Ey.  v.  Minnesota,  ibid.  467; 
Smyth  v.  Ames,  169  id.  466;  L.  S.  &  M.  S.  Ey.  v.  Smith,  173  id.  684. 

51Munn  v.  Illinois,  94  U.  S.  113;  Budd  v.  New  York,  143  id.  517;  Brass 
v.  North  Dakota,  153  id.  391. 

62  S.  D.  L.  &  T.  Co.  v.  National  City,  174  U.  S.  739;  K.  W.  Co.  v.  Knoxville, 
189  id.  434;  S.  D.  L.  &  T.  Co.  v.  Jasper,  ibid.  439;  Stanislaus  County  v. 
S.  J.  &  K.  E.  C.  &  I.  Co.,  192  id.  201.  See  also  Getting  v.  K.  C.  S.  Y. 
Co.,  183  id.  79. 

58  M.  P.  Ey.  v.  Mackey,  127  U.  S.  205;  M.  &  St.  L.  Ey.  v.  Herrick,  ibid. 
210;  St.  L.  &  S.  F.  Ey.  v.  Mathews,  165  id.  1;  cf.  M.  &  St.  L.  Ey.  v.  Beck- 
with,  129  id.  26 ;  C.,  C.  &  A.  E.  v.  Gibbes,  142  id.  386 ;  New  York  v.  Squire, 
145  id.  175 ;  M.  P.  Ey.  v.  Nebraska,  164  id.  403 ;  G.,  C.  &  S.  F.  Ey.  v.  Ellis, 
165  id.  150.  See  also  C.,  E.  I.  &  P.  Ey.  v.  Zernecke,  183  id.  582. 

54  Dent  v.  West  Virginia,  129  U.  S.  114;  Eeetz  v.  Michigan,  188  id.  505. 

55  Morley  v.  L.  S.  &  M.  S.  Ey.,  146  U.  S.  162. 


XVI   AMENDMENT— STATE   JUDICIAL   PROCEEDINGS.        279 

the  goods  destroyed  was  that  set  forth  in  the  insurance 
papers ; 56  it  may  require  the  redemption  in  cash  of  store 
orders  issued  by  employers  in  payment  of  wages  due  to 
employees ; 57  it  may  prohibit  the  manufacture  and  sale  of 
oleomargarine  containing  colouring  matter ; 58  it  may 
prohibit  its  railway  companies  from  charging  greater 
rates  for  shorter  than  for  longer  hauls,  except  by  permis- 
sion of  the  railroad  commission ; 59  it  may  require  rail- 
ways to  erect  and  maintain  stations  on  orders  of  the  rail- 
road commission  which  are  not  shown  to  be  unreason- 
able ; 60  it  may  forbid  the  selling  of  options  for  the  pur- 
chase or  sale  of  commodities ; 61  and  it  may  forbid  the 
maintenance  of  a  cow  stable  within  municipal  limits  with- 
out permission  from  the  municipal  assembly.62  It  has  also 
been  held  that  a  state  may  by  statute  make  water  rates  a 
lien  on  land  prior  to  the  lien  of  a  mortgage  of  date  subse- 
quent to  the  statute ; 63  it  may  validate  a  legally  defective 
mortgage ; 64  it  may  require  a  purchaser  of  land  under  a 
sale  for  non-payment  of  taxes  to  bring  his  possessory  ac- 
tion within  five  years  after  the  sale ; 65  it  may  shorten  the 
period  of  limitation  of  actions,  provided  it  allows  a  rea- 
sonable time  for  the  bringing  of  actions  after  the  passage 
of  the  statute  and  before  the  bar  takes  effect ; 66  and  it 
may,  without  depriving  a  debtor  of  his  property,  repeal 
a  statute  of  limitations  after  the  debt  is  thereby  barred.67 

56  O.  I.  Co.  v.  Daggs,  172  U.  S.  557. 

57  K.  I.  Co.  v.  Harbison,  183  U.  S.  13. 

58  C.  C.  D.  Co.  v.  Ohio,  183  U.  S.  238. 
09  L.  &  N.  E.  v.  Kentucky,  183  U.  S.  503. 

60  M.  &  St.  L.  E.  v.  Minnesota,  193  U.  S.  53. 

61  Booth  v.  Illinois,  184  U.  S.  425. 

62  Fischer  v.  St.  Louis,  194  U.  S.  361. 

83  Provident  Inst.  for  Savings  v.  Jersey  City,  113  U.  S.  506. 
64  Gross  v.  U.  S.  Mtge.  Co.,  108  U.  S.  477. 
«  Barrett  v.  Holmes,  102  U.  S.  651. 

66  Wheeler  v.  Jackson,  137  U.  S.  245;   Turner  v.  New  York,  168  id.  90; 
S.  L.  &  T.  Co.  v.  Comptroller  of  New  York,  177  id.  318. 

67  Campbell  v.  Holt,  115  U.  S.  620. 


280  THE   JUDICIAL,   POWER. 

So  also  a  state  may  tax  remainders  created  by  will  before 
the  precedent  estates  terminate  and  the  remainders  vest 
in  possession.68  So  also  a  state  may  provide  for  the  in- 
spection of  mines,  establish  a  fee  for  the  same,  and  allow 
the  inspectors  to  determine  the  number  of  inspections  per 
year  required  by  each  mine ; 69  the  date  of  the  execution  of 
a  murderer  may  be  fixed  by  the  court  in  the  absence  of  the 
convict, 70  or  it  may  be  fixed  by  the  governor ; 71  if  per- 
mitted by  statute,  the  governor  may  remove  a  subordinate 
official  from  office ; 72  and  a  mayor  may,  by  municipal 
ordinance,  be  given  the  power  to  grant  or  refuse  permis- 
sion to  move  buildings  upon  the  public  streets  of  the  city.73 
On  the  same  principle,  the  trial  of  contested  elections  may 
be  committed  by  the  state  constitution  to  the  legislature 
of  the  state  and  the  provision  of  the  XIV  Amendment  that 
no  person  shall  be  deprived  of  his  propery  without  due 
process  of  law  is  not  thereby  violated.74 

The  "full  faith  and  credit "  clause. 

118.  The  judicial  action  of  the  states  is  also  restrained 
by  Section  1  of  Article  IV  of  the  Constitution,  which  de- 

68Orr  v.  Gilman,  183  U.  S.  278. 

69  St.  L.  C.  C.  Co.  v.  Illinois,  185  U.  S.  203. 

70  Fielden  v.  Illinois,  143  U.  S.  452. 

nHolden  v.  Minnesota,  137  U.  S.  483.  On  the  power  of  executive 
officers  to  decide  upon  a  term  of  imprisonment,  see  Dreyer  v.  Illinois,  187 
U.  S.  71. 

72  Wilson  v.  North  Carolina,  169  U.  S.  586. 

73  Wilson  v.  Eureka  City,  173  U.  S.  32. 

74  Taylor  and  Marshall  v.  Beckham,  178  U.  S.  548.     For  decisions  as  to 
"liberty,"  see  Allgeyer  v.  Louisiana,  165  id.  578;  Davis  v.  Massachusetts, 
167  id.  43;  and  also  G.  S.  F.  H.  Co.  v.  Jones,  193  id.  532;  as  to  "property," 
see    Pennie    v.    Eeis,    132    id.    464;    Eldridge   v.    Trezevant,    160    id.    452; 
Plessy  v.   Ferguson,   163   id.   537;    M.   P.   Ey.   v.   Nebraska,   164  id.   403; 
Sentell  v.  N.  O.  &  C.  E.,  166  id.  698;  W.  E.  v.  Defiance,  167  id.  88.     On 
"due  process  of  law"  under  the  V  Amendment,  see  Sec.  112,  supra.     The 
XIV  Amendment   is  directed  against  the  states  and,   therefore,   does  not 
protect  individuals  against  actions  by  officials  in  violation  of  state  laws: 
Barney  v.  City  of  New  York,  193  U.  S.  430. 


THE  "FULL  FAITH  AND  CREDIT "  CLAUSE.          281 

clares  that,  "full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  state.  And  the  Congress  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof/'75 
Under  this  constitutional  grant  of  authority  Congress  has 
enacted,76  that  "the  acts  of  the  legislature  of  any  state 
or  territory,  or  of  any  country  subject  to  the  jurisdiction 
of  the  United  States,  shall  be  authenticated  by  having 
the  seals  of  such  state,  territory,  or  country  affixed  thereto. 
The  records  and  judicial  proceedings  of  the  courts  of  any 
state  or  territory,  or  of  any  such  country,  shall  be  proved 
or  admitted  in  any  other  court  within  the  United  States  by 
the  attestation  of  the  clerk,  and  the  seal  of  the  court 
annexed,  if  there  be  a  seal,  together  with  a  certificate  of 
the  judge,  chief  justice,  or  presiding  magistrate,  that  the 
said  attestation  is  in  due  form.  And  the  said  records  and 
judicial  proceedings  so  authenticated,  shall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United 
States  as  they  have  by  law  or  usage  in  the  courts  of  the 
state  from  which  they  are  taken."  Legislative  acts  of  a 
state  are,  under  the  terms  of  the  Act  of  1790,  authenticated 
by  the  seal  of  the  state,  and  in  the  absence  of  contrary 
proof,  the  seal  will  be  presumed  to  have  been  affixed  by 
the  officer  having  its  custody  and  duly  authorized  to  affix 

75  "The  judgments  of  a  foreign  state  are  prima  facie  evidence  only,  and 
but  for  these  constitutional  and  legislative  provisions  judgments  of  a  state 
of  the  Union,  when   sued  upon  in  another   state,  would  have  no   greater 
effect.  .  .  .  Judgments  rendered   in  ...  foreign   country,  by   the  laws  of 
which  our  own  judgments  are  reviewable  upon  the  merits,  are  not  entitled  to 
full  credit  and  conclusive  effect  when  sued  upon  in  this  country,  but  are 
prima  facie  evidence  only  of  the  justice  of  the  plaintiff's  claim:"  Hilton 
v.  Guyot,  159  U.  S.  113,  182,  227.     But  where,  by  international  comity,  the 
courts  of  another  country  give  full  effect  to  the  judgment  of  an  American 
court,  a  judgment  rendered  in  that  country  can  be  impeached  only  on  the 
ground  of  fraud:  Eitchie  v.  Mullen,  159  U.  S.  235. 

76  Act  of  26th  May,  1790,  1  Stat.  122;  Rev.  Stat.,  sec.  905. 


282  THE   JUDICIAL,   POWER. 

it  to  the  record.77  Such  acts  will  "be  given  the  same 
effect  by  the  courts  of  another  state  that  they  have  by  law 
and  usage"  in  the  state  of  their  enactment; 78  and,  as  the 
courts  of  every  state  and  country  have  the  exclusive 
power  of  construing  its  local  statutes,  their  construction 
thereof  will  be  followed  in  the  courts  of  other  countries 
and  states,79  On  this  line  it  has  been  held  that  if  a  state 
court  has  decided  that  a  law  is  in  harmony  with  the  state 
constitution  its  validity,  so  far  as  the  state  constitution  is 
concerned,  cannot  be  questioned  elsewhere.80  Yet  even  an 
erroneous  construction  of  a  statute  by  the  courts  of  an- 
other state  does  not  deny  to  it  the  faith  and  credit  re- 
quired by  the  Constitution  where  the  local  courts  have 
not  considered  the  statute  or  where  their  construction  has 
not  been  proved  as  a  fact  in  the  foreign  state.81  And  a 
construction  by  a  state  court  of  decrees  made  by  a  federal 
court  and  by  a  court  of  another  state  will  not  be  held  to 
deny  full  faith  and  credit  to  those  decrees  unless  the 
unreasonableness  of  the  construction  is  clearly  shown.82 
It  is  essential  to  the  enforcement  in  the  courts  of  the  states 
of  the  legislative  acts  83  and  records  of  judicial  proceed- 

77  U.  S.  v.  Amedy,  11  Wheat.  392. 

78  C.  &  A.  E.  v.  W.  F.  Co.,  119  U.  S.  615,  622;  cf.  Friedlander  v.  T.  &  P. 
By.,  130  id.  416. 

79  Elmendorf  v.  Taylor,  10  Wheat.  152;   Smith  v.  Condry,  1  How.  28; 
Bucher  v.  C.  E.,  125  U.  S.  555;  Cross  v.  Allen,  141  id.  528;  B.  T.  Co.  v. 
B.  B.  E.,  151  id.  137;   Laing  v.  Eigney,  160  id.  531;    Turner  v.  Wilkes 
County  Comrs.,  173  id.  461;  Mitchell  v.  First  Nat.  Bank,  180  id.  471;  A.  A. 
P.  Co.  v.  D.  P.  Co.,  191  id.  373. 

80  Spencer  v.  Merchant,  125  U.  S.  345;  Fallbrook  Irr.  Dist.  v.  Bradley, 
164  id.   112;   Forsyth  v.   Hammond,   166  id.  506;   In  re  Duncan,  139  id. 
449;  Leeper  v.  Texas,  ibid.  462;  Andrews  v.  Swartz,  156  id.  272;  Miller 
v.  C.  E.,  168  id.  131;  Brown  v.  New  Jersey,  175  id.  172;  Erb  v.  Morasch, 
177  id.  584;  Wilkes  County  v.  Coler,  180  id.  506. 

81  Glenn  v.  Garth,  147  U.  S.  360;  Lloyd  v.  Matthews,  155  id.  222;  Ban- 
holzer  ivN.  Y.  L.  I.  Co.,  178  id.  402;  Johnson  v.  N.  Y.  L.  I.  Co.,  187  id. 
491 ;  E.  B.  &  L.  Assn.  v.  Williamson,  189  id.  122 ;  Finney  v.  Guy,  ibid.  335. 
See  also  E.  B.  &  L.  .Assn.  v.  Ebaugh,  185  id.  114. 

82  C.  P.  Co.  v.  Beckwith,  188  U.  S.  567. 
88  U.  S.  v.  Amedy,  11  Wheat.  392. 


THE  "FULL  FAITH  AND  CKEDIT"  CLAUSE.          283 

ings  in  the  courts 84  of  another  state,  that  they  be  certified 
in  strict  compliance  with  the  directions  of  the  act  of  Con- 
gress. But  a  judgment  of  a  state  court,  though  certi- 
fied in  accordance  with  the  act  of  Congress,  does  not 
operate  prQvrio  vigore  in  another  state,  and  in  order  to 
give  it  the  force  of  a  judgment  in  that  other  state,  suit 
must  be  brought  upon  it  there,  and  the  period  of  limita- 
tion as  prescribed  by  the  lex  fori  may  be  pleaded  as 
against  such  a  judgment.85  When  so  certified  and  sued 
upon,  such  judgments  must  be  given  the  same  effect  that 
is  given  to  them  in  the  jurisdiction  in  which  they  have  been 
rendered.  Therefore,  to  an  action  on  a  judgment  so 
certified,  nil  debet  cannot  be  pleaded; 86  nor,  it  seems,  can 
fraud  be  pleaded  to  an  action  on  such  a  judgment.87 
When  the  record  of  a  judgment  falsely  recites  an  appear- 
ance by  counsel,  it  cannot  be  collaterally  impeached,  when 
sued  upon  in  another  state,  for  it  might  have  been  set 
aside  by  audita  querela,  in  the  jurisdiction  wherein  it  was 
rendered.88  But  no  greater  effect  can  be  given  in  a  state 
court  to  a  judgment  of  a  court  of  another  state  than  would 

^Caperton  v.  Ballard,  14  Wall.  238;  Ferguson  v.  Harwood,  7  Cr.  408; 
Owings  v.  Hull,  9  Pet.  607,  627. 

^McElmoyle  v.  Cohen,  13  Pet.  312;  Bank  of  Alabama  v.  Dalton,  9  How. 
522 ;  Bacon  v.  Howard,  20  id.  22. 

86  Armstrong  v.  Carson,  2  Dall.  302 ;  Mills  v.  Duryee,  7  Cr.  481  j  Hampton 
v.  McConnel,  3  Wheat.  234. 

87  Christmas  v.  Eussell,  5  Wall.  290 ;  Maxwell  v.  Stewart,  22  id.  77.     See, 
however,  dicta  in  McNitt  v.  Turner,  16  Wall.  352,  366;  Cole  v.  Cunning- 
ham, 133  U.  S.  107,  112;  Simmons  v.  Saul,  138  id.  439,  454.     In  Cole  v. 
Cunningham,  it  was  held  that  a  court  may  enjoin  a  citizen  of  its  own  state 
from  prosecuting  fraudulent  proceedings  commenced  by  him  in  the  courts 
of  another  state.     In  Andrews  v.   Andrews,   188  U.   S.   14,   a  state   court 
properly  refused  credit  to  a  divorce  obtained  by  fraud  in  another  state. 

S8Landes  v.  Brant,  10  How.  348,  371;  cf.  Knowles  v.  G.  &  C.  Co.,  19 
Wall.  58;  Cooper  v.  Newell,  173  U.  S.  555.  A  judgment  conclusive  in  the 
state  in  which  it  has  been  rendered  is  conclusive  in  the  courts  of  the 
United  States:  Caldwell  v.  Carrington,  9  Pet.  86;  Christmas  v.  Eussell,  5 
Wall.  302;  Cheever  v.  Wilson,  9  id.  108;  Pennoyer  v.  Neff,  95  U.  S.  714; 
C.  &  A.  E.  v.  W.  P.  Co.,  108  id.  18 ;  Erb  v.  Morasch,  177  id.  584. 
19 


284  THE   JUDICIAL   POWEK. 

be  given  to  that  judgment  in  the  state  where  rendered. 
Therefore,  a  personal  judgment  which  has  been  rendered 
in  one  state  against  several  parties  jointly,  service  of  pro- 
cess having  been  made  on  some  of  them,  or  they  having 
voluntarily  appeared,  and  service  having  been  made  by 
publication  as  to  the  others,  is  not  evidence  outside  of  the 
state  of  any  liability  on  the  part  of  those  not  personally 
served.89  Nor  will  a  judgment  rendered  in  one  state  against 
two  joint  debtors,  only  one  of  whom  has  been  served  with 
process,  support  an  action  in  a  court  of  another  state 
against  the  party  not  served,  nor  avail  as  the  foundation 
of  a  judgment  against  him.90  A  judgment  recovered  in 
one  state  against  two  joint  defendants,  one  of  whom  has 
been  duly  summoned  and  the  other  has  not,  and  which  is 
valid  and  enf  orcible  by  the  law  of  that  state  against  the 
party  served  with  process,  will  support  an  action  against 
that  party  in  another  state.91  It  is  an  essential  pre- 
requisite to  the  enforcement  in  any  court  of  a  judgment, 
either  in  personam  or  in  rem,  rendered  in  any  court,  that 
the  court  rendering  the  judgment  had  by  law  jurisdiction 
of  the  subject-matter  of  the  suit ; 92  and,  if  the  judgment 
was  in  personam,  that  the  defendant  either  was  served 
with  process  within  the  territorial  jurisdiction  of  the  court, 
or  voluntarily  appeared  in  the  suit ; 93  and,  if  the  judg- 

89  Board  of  Pub.  Works  v.  Columbia  College,  17  Wall.  521. 

90  D  'Arcy  v.  Ketchum,  11  How.  165. 

91  Hanley  v.  Donoghue,  116  TJ.  S.  1 ;  Eenaud  v.  Abbott,  ibid.  277. 

92  Glass  v.  Sloop  Betsey,  3  Ball.  6 ;  Bose  v.  Himely,  4  Cr.  241,  269 ;  Elliott 
v.  Peirsol,  1  Pet.  328,  340;  Voorhees  v.  Bank  of  the  TJ.  S.,  10  id.  449,  475; 
Wilcox  v.  Jackson,  13  id.  498,  511;  Shriver's  Lessee  v.  Lynn,  2  How.  43, 
59;  Lessee  of  Hickey  v.  Stewart,  3  id.  750,  762;   Williamson  v.  Berry,  8 
How.  495,  540;  Thompson  v.  Whitman,  18  Wall.  457;  Maxwell  v.  Stewart, 
22  id.  77;   Cole  v.  Cunningham,  133  U.  S.  107;   Simmons  v.  Saul,  138  id. 
439;    Thormann   v.   Frame,   176   id.   350;    Clarke  v.   Clarke,   178   id.   186; 
Andrews  v.  Andrews,  188  id.  14;  G.  S.  &  L.  S.  v.  Dormitzer,  192  id.  125. 

93  Mayhew  v.  Thatcher,  6  Wheat.  129 ;  D  'Arcy  v.  Ketchum,  11  How.  165 ; 
Harris  v.  Hardeman,  14  id.  334;  L.  I.  Co.  v.  French,  18  id.  404;  Bischoff 
v.  Wethered,  9  Wall.  812;   Board  of  Public  Works  v.  Columbia  College, 


THE  "FULL  FAITH  AND  CREDIT "  CLAUSE.          285 

ment  was  in  rem,  that  the  res  was  within  the  territorial 
jurisdiction  of  the  court  acting  upon  it,  and  was  properly 
brought  under  its  control ; 94  for  process  issued  by  any 
court,  and  served  personally  on  a  defendant  out  of  its 
territorial  jurisdiction,  and  process  published  within  that 
territorial  jurisdiction,  are  equally  unavailing  in  a  pro- 
ceeding to  establish  a  personal  liability  on  the  part  of  the 
defendant,  and  while,  where  property  is  by  seizure  or  some 
equivalent  act  brought  within  the  control  of  a  court,  sub- 
stituted service  by  publication  is  sufficient  to  inform  a 
non-resident  owner  of  the  property  of  the  object  of  the 
proceeding,  such  publication  is  not  effectual  to  ground 
a  personal  liability  upon.95  But  if  a  non-resident  de- 
fendant has  by  attorney  voluntarily  appeared  in  the  ac- 
tion, and  judgment  has  been  rendered  in  his  favour  in  the 
court  of  the  first  instance,  he  may,  after  the  withdrawal 
of  his  attorney's  appearance,  be  notified,  by  publication, 
of  a  writ  of  error  or  appeal,  by  means  of  which  the  cause 
is  removed  to  an  appellate  tribunal,  and  a  judgment  of 
reversal  in  that  tribunal  will  be  binding  on  him  as  a  judg- 
ment in  personam,  and  as  such  enforcible  against  him  in 
the  court  of  another  state.96  And  a  judgment  in  personam 
may  be  rendered  in  a  proceeding  in  rem  against  a  defend- 
ant out  of  the  jurisdiction,  who  has  by  his  voluntary 
appearance  made  himself  a  party  to  the  litigation,  and 
such  a  judgment  is  enforcible  by  an  action  thereon  in 

17  id.  521;  Pennoyer  v.  Neff,  95  U.  S.  714;  St.  Clair  v.  Cox,  106  id.  350; 
G.  &  B.  S.  M.  Co.  v.  Eadcliffe,  137  id.  287;  Cooper  v.  Newell,  173  id.  555.  See 
also  Wedding  v.  Meyler,  192  id.  573. 

"Boswell  v.  Otis,  9  How.  336;  Ennis  v.  Smith,  14  id.  400,  430;  Cooper 
v.  Eeynolds,  10  Wall.  308;  Johnson  v.  Powers,  139  U.  S.  156;  Eeynolds 
v.  Stockton,  140  id.  254;  Carpenter  v.  Strange,  141  id.  87;  Cooper  v.  Newell, 
173  id.  555;  Howard  v.  De  Cordova,  177  id.  609;  Clarke  «.  Clarke,  178 
id.  186. 

95  Pennoyer  v.  Neff,  95  U.   S.   714;    Cooper  v.  Eeynolds,  10  Wall.   308; 
Webster  v.  Eeid,  11  How.  437;  Phelps  v.  Holker,  1  Ball.  261;  Freeman  v. 
Alderson,  119  U.  S.  185. 

96  Nations  v.  Johnson,  24  How.  195. 


286  THE    JUDICIAL   POWER. 

another  state  against  that  defendant.97  Yet  where  the 
defendant  takes  no  part  in  the  proceedings  after  respond- 
ing to  the  complaint  as  filed,  and  on  those  pleadings  a 
judgment  is  rendered  which  is  in  no  way  responsive  to 
them,  that  fact  may  be  set  up  in  bar  to  a  recovery  on  the 
judgment.98  A  court  may  take  jurisdiction  of  an  action 
for  divorce  brought  by  a  citizen  of  its  own  state,  upon 
constructive  notice  of  the  action  being  given  to  the  de- 
fendant,99 but  where  neither  party  is  domiciled  within  the 
state,  then,  although  the  defendant  has  received  actual 
notice,  a  decree  of  divorce  is  not  entitled  to  faith  and 
credit  in  any  other  jurisdiction.100  Where  a  corporation 
chartered  by  one  state  is  permitted  by  another  state  to 
transact  business  therein  upon  condition  that  service  of 
process  upon  a  resident  agent  of  the  corporation  should 
be  considered  as  service  upon  the  corporation,  a  judgment 
rendered  in  the  latter  state  against  the  corporation,  and 
based  upon  such  service  of  process  upon  the  agent,  must 
be  received  in  the  state  chartering  the  corporation  with 
the  same  faith  and  credit  that  is  given  to  it  in  the  state 
wherein  it  is  rendered.1  But  a  judgment  in  personam 
rendered  against  a  foreign  corporation  in  a  suit  begun  in  a 
state  court  by  an  attachment  of  property,  and,  as  incident 
thereto,  a  service  of  a  copy  of  the  writ  and  an  inventory 
of  the  attached  property  on  a  resident  agent,  without 
appearance  by  the  corporation^  not  conclusive  in  another 
action  to  which  the  corporation  is  a  party  in  a  court  of  the 
United  States.2  Where  a  court  of  one  state  grants  pro- 

97  Maxwell  v.  Stewart,  22  Wall.  77. 

98  Keynolds  v.  Stockton,  140  U.  S.  254. 
^Atherton  v.  Atherton,  181  U.  S.  155. 

100  Andrews  v.  Andrews,  188  U.  S.  14;  Brewer,  Shiras,  and  Peckham,  JJ., 
dissenting.  See  also  G.  S.  &  L.  S.  v.  Dormitzer,  192  id.  125;  Bell  v.  Bell, 
181  id.  175;  Streitwolf  v.  Streitwolf,  ibid.  179. 

XL.  I.  Co.  v.  French,  18  How.  404. 

2  St.  Glair  v.  Cox,  106  U.  S.  350. 


THE  "FULL  FAITH  AND  CREDIT"  CLAUSE.          287 

bate  of  a  will  disposing  of  lands  in  another  state,  it  merely 
decides  that  the  will  was  executed  in  accordance  with  the 
laws  of  the  domicile,  and  a  court  of  the  state  in  which  the 
land  is  situated  does  not  violate  the  constitutional  pro- 
vision in  deciding  that  the  will  was  not  executed  in  accord- 
ance with  its  own  laws.3  The  record  of  a  judgment 
rendered  in  another  state  may  be  contradicted  as  to  the 
facts  necessary  to  give  the  court  jurisdiction,  and  its 
recital  of  the  existence  of  such  facts  is  not  conclusive,  and 
want  of  jurisdiction  may  be  shown  either  as  to  the  subject- 
matter  or  as  to  the  person,  and,  in  proceedings  in  rem,  as 
to  the  res.  Therefore,  in  an  action  of  trespass  de  bonis, 
etc.,  in  a  court  of  the  United  States  against  a  county 
sheriff  of  New  Jersey  for  taking  the  plaintiff's  oyster 
boat,  the  defendant  having  pleaded  in  justification  the 
record  of  a  forfeiture  of  the  boat  under  a  New  Jersey 
statute  authorizing  a  summary  conviction  on  a  hearing  by 
two  justices  of  the  county  in  which  the  seizure  was  made, 
it  was  held,  that  the  recital  in  the  record  of  a  seizure  of 
the  boat  in  the  county  in  which  the  justices  exercised 
jurisdiction  was  open  to  contradiction  by  evidence  that  the 
seizure  was  not  made  within  the  territorial  limits  of  that 
county.4  On  the  same  principle,  a  recital  in  a  record 
of  a  personal  service  of  a  summons  upon  a  defendant,  may 
be  contradicted  by  proof  that  the  defendant  was  not 
served ; 5  and  a  recital  of  appearance  by  attorney  may  be 
contradicted  by  showing  that  no  attorney  was  authorized 
to  appear  for  the  defendant  in  the  suit.6  Administrators 
in  different  jurisdictions  of  the  personal  estate  of  the  same 
decedent  are  not  privies  in  estate  to  the  extent  that  a 
judgment  in  one  jurisdiction  against  one  administrator 

3  Blount  v.  Walker,  134  U.  S.  607. 

4  Thompson  v.  Whitman,  18  Wall.  457. 

5  Knowles  v.  G.  &  C.  Co.,  19  Wall.  58. 

6  Cooper  v.  Newell,  173  U.  S.  555. 


2'>&  THE   JUDICIAL   POWEB. 

'  enforcible  in  the  other  jurisdiction  against  the  ad- 
.  linistrator  therein; 7  and  the  grant  of  letters  of  adminis- 
tration in  one  state  cannot  authorize  the  administrator  to 
maintain  any  suit  in  the  courts,  either  state  or  federal,  held 
in  any  other  state.8  An  objection  to  the  informality  of  the 
authentication  of  a  record  cannot  be  made  by  a  party  who 
has  antecedently  offered  that  identical  record  in  another 
proceeding.9  In  a  suit  for  wages  the  defendant  can  set 
up  a  judgment  in  garnishment  proceedings  against  the 
same  wages,  recovered  in  another  state,  and  that  judg- 
ment is  a  bar  to  further  action.10  A  state  statute  of  limita- 
tions, providing  that  suits  upon  judgments  rendered  in 
other  states,  if  not  brought  within  two  years,  shall  be 
barred,  is  a  bar  to  an  action  on  such  a  judgment  against 
one  who  only  became  a  citizen  of  the  state  on  the  day  on 
which  suit  was  brought.11  A  judgment  recovered  on  a 
penal  statute  of  a  state  cannot  be  enforced  in  another 
jurisdiction;12  but  the  rule  is  otherwise  when  the  judg- 
ment has  been  recovered  on  a  statute  affording  a  private 
remedy  to  the  person  injured.13  A  state  may  deny  to  its 
courts  jurisdiction  over  suits  between  foreign  corpora- 
tions on  a  foreign  judgment,  for  "this  provision  of  the 
Constitution  establishes  a  rule  of  evidence  rather  than  of 
jurisdiction.  "14  Wherever  a  state  court  refuses  in  a 
cause  to  give  due  effect  to  a  judgment  rendered  in  a  court 
of  the  United  States,  or  in  a  court  of  another  state,  having 
by  law  jurisdiction  of  the  subject-matter  of  litigation,  and 
having  acquired  by  due  service  of  process,  or  otherwise, 

7  Stacy  v.  Thrasher,  6  How.  44. 

8  Johnson  v.  Powers,  139  IT.  S.  156. 
"Urtetiqui  v.  D'Arbel,  9  Pet.  692. 

10  C.,  E.  I.  &  P.  By.  v.  Sturm,  174  U.  S.  710. 
"Bank  of  the  State  of  Alabama  v.  Dalton,  9  How.  522. 
"Wisconsin  v.  P.  I.  Co.,  127  U.  S.  265. 

"Huntington  v.  Attrill,  146  U.  S.  657;  Whitman  v.  Oxford  Nat.  Bank, 
176  id.  559 ;  Hancock  Nat.  Bank  v.  Farnum,  ibid.  640. 
14  A.  A.  P.  Co.  v.  D.  P.  Co.,  191  U.  S.  373. 


THE  "FULL  FAITH  AND  CBEDIT"  CLAUSE.          289 

jurisdiction  of  the  person  of  the  party  against  whoin. 
judgment  has  been  rendered,  the  action  of  the  state  court 
in  so  refusing  is  subject  to  review  in  the  Supreme  Court 
of  the  United  States  under  the  25th  Section  of  Judiciary 
Act  of  1789,  and  the  Act  of  5th  February,  1867.15  The 
record  of  a  court  of  the  United  States  is  sufficiently 
proved  when  certified  by  the  clerk  of  the  court  under  its 
seal.16  And  the  judgments  of  the  courts  of  the  United 
States,  when  sued  upon,  or  set  up  by  way  of  defense  in 
state  courts,  are,  if  rendered  in  a  cause  of  which  the  court 
of  the  United  States  had  jurisdiction  both  as  to  the  sub- 
ject-matter and  the  res  or  the  person  of  the  defendant, 
conclusive  upon  the  parties  and  privies  thereto,  and 
enforcible  in  the  state  courts  to  the  same  extent  as  in 
courts  of  the  United  States.17  Judgments  rendered  in 
courts  of  the  United  States  in  causes,  jurisdiction  of  which 
was  obtained  by  reason  of  the  citizenship  of  the  parties, 
and  in  which  the  law  of  the  state  within  which  the  court 
sat  was  administered,  have  only  that  validity  and  effect 
which  is  due  to  a  judgment  of  a  court  of  the  state  in  such 
a  cause,18  and,  therefore,  a  court  of  a  state  which  refuses 
to  give  a  greater  effect  to  such  a  judgment  of  a  court  of 
the  United  States  cannot  be  said  to  decide  against  a  title 
or  right  claimed  under  an  authority  exercised  under  the 
United  States. 

15 14  Stat.  385.     Eev.  Stat.,  Sec.  709. 

16Turnbull  v.  Payson,  95  U.  S.  418. 

"Embry  v.  Palmer,  107  U.  S.  3;  Werlein  v.  New  Orleans,  177  id.  390. 
See  also  N.  P.  &  P.  W.  v.  O.  W.  S.  Co.,  183  id.  216;  Deposit  Bank 
«.  Frankfort,  191  id.  499. 

"Dupasseur  v.  Eochereau,  21  Wall.  130. 


CHAPTER  XL 

EIGHTS  OF  PERSON  AND  OF  PROPERTY. 

119.  Citizenship  of  the  United  States. 

120.  Citizenship  of  a  state. 

121.  The  right  of  suffrage. 

122.  The  right  of  serving  on  juries. 

123.  Congressional  regulation  of  federal  elections. 

124.  Immigrants  and  aliens. 

125.  Personal  and  property  rights. 

126.  The  rights  within  a  state  of  citizens  of  other  states. 

127.  Foreign  corporations. 

128.  The  I  Amendment. 

129.  The  XIII  Amendment. 

130.  The  XIV  Amendment. 

131.  The  equal  protection  of  the  laws. 

132.  The  police  power. 

Citizenship  of  the  United  States. 

119.  As  Miller,  J.,  stated  in  the  judgment  in  the 
Slaughter  House  Cases,1  the  Constitution,  as  originally 
adopted,  did  not  define  citizenship  of  the  United  States, 
although  it  did,  by  Section  2  of  Article  IV,  provide  that 
"the  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states, "  and,  by 
Section  2  of  Article  I,  declare  citizenship  of  the  United 
States  to  be  a  necessary  qualification  for  election  as  a 
representative  in  Congress.  In  view  of  that  which  the 
Constitution  said,  and  of  that  which  it  left  unsaid,  it  might 
well  have  been  thought  that  citizenship  of  the  United 
States  was  dependent  upon  and  only  incident  to  citizen- 
ship of  a  state,  but  the  point  was  not  judicially  determined 
before  the  adoption  of  the  XIV  Amendment.  In  a  recent 

1 16  Wall.  72. 

290 


CITIZENSHIP   OF  THE   UNITED   STATES.  291 

case,2  however,  Gray,  J.,  discussed  at  length  the  meaning  of 
the  term  "citizen"  as  used  at  common  law  and  suggested 
that  after  the  adoption  of  the  Constitution  all  white  per- 
sons, at  least,  born  within  the  sovereignty  of  the  United 
States,  whether  children  of  citizens  or  of  foreigners,  ex- 
cepting only  children  of  ambassadors  or  public  ministers 
of  a  foreign  government,  were  native-born  citizens  of 
the  United  States.  An  even  broader  definition  of  the  term 
was  established  by  Section  1  of  the  XIV  Amendment,  which 
declares  that' '  all  persons  born  or  naturalized  in  theUnited 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  state  wherein  they  reside. ' ' 
From  and  after  the  adoption  of  that  Amendment,  there- 
fore, the  birth  within  the  United  States  of  any  person, 
whether  white  or  coloured,  who  is  subject  to  its  juris- 
diction, or  the  naturalization  of  any  alien,  makes  the  per- 
son so  born,  or  naturalized,  a  citizen  of  the  United  States  ;3 
and  that  right  of  citizenship  is  entitled  to  protection  under 
such  laws  as  Congress  may  enact  in  execution  of  the 
powers  conferred  by  the  XIV  and  XV  Amendments. 
Section  8  of  Article  I  of  the  Constitution  authorizes  Con- 
gress "to  establish  an  uniform  rule  of  naturalization." 
It  is,  therefore,  beyond  the  power  of  any  state  to  prescribe 
the  conditions  of  naturalization,  or  to  admit  to  citizenship 
any  alien  other  than  those  whom  the  acts  of  Congress 
permit  to  be  naturalized;4  nevertheless  aliens  may  be 
naturalized  by  proceedings  in  courts  of  the  states  in  con- 
formity with  the  acts  of  Congress.5 

2  U.  S.  v.  Wong  Kim  Ark,  169  IT.  S.  649. 

8  The  Slaughter  House  Cases,  16  Wall.  73 ;  U.  S.  v.  Cruikshank,  92  U.  S. 
548;  U.  S.  v.  Wong  Kim  Ark,  169  id.  649,  cf.  Elk  v.  Wilkins,  112  id.  94. 
Congress  may,  by  statute  or  treaty,  provide  for  the  collective  naturalization 
of  the  citizens  of  a  territory  upon  its  admission  to  statehood:  Boyd  v. 
Nebraska,  143  U.  S.  135 ;  Contzen  v.  IT.  S.,  179  id.  191. 

4  Chirac  v.  Chirac,  2  Wheat.  269;  Dred  Scott  v.  Sandford,  19  How.  405. 

6  Collet  v.  Collet,  2  Ball.  294. 


292  BIGHTS   OF   PERSONS   AND   OF    PEOPEETY. 

Citizenship  of  a  state. 

120.  In  Dred  Scott  v.  Sandford,6  the  court  determined 
that  a  free  negro  could  not  be  a  citizen  of  a  state,  but,  in 
his  dissenting  judgment,  Curtis,  J.,  showed  that  it  was  an 
historical  fact,  that  in  five  of  the  thirteen  original  states 
negroes  were  not  only  recognized  as  citizens,  but  also  ad- 
mitted to  the  exercise  of  the  right  of  suffrage,  and  that 
many  acts  of  Congress  had,  by  necessary  implication,  rec- 
ognized negroes  as  citizens;  and  the  weight  of  authority 
supports  the  position,  that  each  state  could,  so  far  as  the 
Constitution  of  the  United  States  does  not  restrain  it,  de- 
termine the  status,  and  consequently  the  citizenship,  of 
the  persons  domiciled  within  its  territory.7     By  the  terms 
of  the  XIV  Amendment,  4 '  all  persons  born  or  naturalized 
in  the  United   States,   and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the  state 
wherein  they  reside. ' '    Therefore  birth,  or  naturalization, 
in  the  United  States,  followed  by  residence  within  the 
territory  of  any  state,  makes  the  person  so  born  or  natu- 
ralized, and  so  residing,  a  citizen  of  that  state. 

The  right  of  suffrage. 

121.  All  citizens  are  not  necessarily  entitled  to  the  exer- 
cise of  the  right  of  suffrage,  for  the  term  "  citizen, "  in 
the  constitutional  sense  of  the  term,  means  one  who  owes 
the  duty  of  allegiance  and  is  entitled  to  the  correlative 
right  of  protection,  and  it,  therefore,  includes  persons 
who,  by  reason  of  sex,  or  age,  may  not  be  qualified  to  vote. 
The  right  of  suffrage  is  a  subject  of  state  regulation,  and 
not  a  privilege,  or  immunity,  of  citizenship  protected  by 
the  Constitution  of  the  United  States,8  except  in  so  far 

6 19  How.  393. 

7  Strader   v.   Graham,    10   How.    93 ;    Holmes   v.   Jennison,    14   Pet.   540  j 
Groves  v.  Slaughter,  15  id.  449 ;  Prigg  v.  Pennsylvania,  16  id.  539. 

8  Pope  v.  Williams,  193  U.  S.  621. 


THE   EIGHT   OF    SUFFRAGE.  293 

as  the  XIV  Amendment  protects  it.  The  Constitution 
provides,  in  Section  2  of  Article  I,  that,  at  congressional 
elections,  "the  electors  in  each  state  shall  have  the  quali- 
fications requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislature. ' ' 9  A  state  may,  without 
contravening  any  constitutional  provision,  deny  the  suf- 
frage to  women,10  but  by  force  of  the  XV  Amendment  a 
state  may  not,  in  its  limitations  on  the  exercise  of  the  right 
of  suffrage,  discriminate  against  citizens  of  the  United 
States  on  account  of  their  ' '  race,  colour,  or  previous  condi- 
tion of  servitude. "  A  state,  therefore,  cannot  limit  the 
right  of  suffrage  to  the  white  race.11  Nevertheless,  the 
power  of  Congress  to  legislate  for  the  protection  of  the 
rights  conferred  by  that  Amendment  being  limited  by  the 
terms  of  the  Amendment,  Congress  cannot  by  statute  pro- 
vide for  the  punishment  of  state  election  officers  for 
wrongfully  refusing  to  receive  the  vote  of  a  qualified 
voter  at  an  election,  when  that  refusal  is  not  based  upon 
a  discrimination  against  the  voter  on  account  of  his  race, 
colour,  or  previous  condition  of  servitude ; 12  nor  can  Con- 
gress by  a  general  statute  provide  for  the  punishment  of 
individuals  who  bribe  persons  to  whom  the  right  of  suf- 
frage is  guaranteed  by  that  Amendment; 13  nor  can  a  con- 
viction in  a  court  of  the  United  States  be  sustained  under 
an  indictment  which  charges  the  defendant  in  general 
terms  with  an  intent  to  hinder  and  prevent  citizens  of 
the  United  States,  of  African  descent,  therein  named,  in 
the  free  exercise  and  enjoyment  of  the  rights,  privileges, 
immunities,  and  protection,  granted  and  secured  to  them 

•  Wiley  v.  Sinkler,  179  U.  S.  58.     See  also  Mason  v.  Missouri,  ibid.  328 ; 
Swafford  v.  Templeton,  185  id.  487. 

10  Minor  v.  Happersett,  21  Wall.  162. 

11  Ex  parte  Yarbrough,  110  U.  S.  665.     See  Giles  v.  Harris,  189  id.  475; 
Giles  v.  Teasley,  193  id.  146. 

12  U.  S.  v.  Keese,  92  U.  S.  214. 

13  James  v.  Bowman,  190  U.  S.  127. 


294  EIGHTS   OF    PERSONS   AND   OF   PROPERTY. 

as  citizens  of  the  United  States  and  of  a  state,  without 
specifying  any  particular  right,  the  enjoyment  of  which 
the  conspirators  intended  to  hinder  or  prevent.14 

As  the  right  of  a  citizen  of  a  state  to  vote  for 
representatives  in  Congress  is  derived  not  only  from  the 
constitution  and  laws  of  his  state,  but  also  from  the  Con- 
stitution and  laws  of  the  United  States,  it  follows  that  a 
citizen,  otherwise  qualified  under  the  constitution  and 
laws  of  his  state,  may  maintain  an  action  at  law  in  the 
circuit  court  of  the  United  States  to  recover  from  officers 
of  the  state  damages  for  their  wrongful  refusal  of  his  vote 
at  a  congressional  election.143  But  where  the  constitu- 
tion of  a  state  defines  the  qualifications  for  the  exercise  of 
the  suffrage,  and  imposes  the  conditions  of  registry  as  a 
voter,  one  to  whom  registry  is  refused  cannot,  upon  an 
allegation  that  the  state's  system  of  registration  is  void 
because  it  violates  the  XV  Amendment,  maintain  a  suit  in 
equity  in  the  circuit  court  of  the  United  States  to  com- 
pel the  state  officers  to  register  him  as  a  voter  under  that 
system  which  he  alleges  to  be  void,  for  a  decree  in  his 
favour  would  accomplish  no  practical  result; 14b  and  when 
that  citizen  has  brought  an  action  at  law  in  a  court  of  the 
state  to  recover  from  state  officers  damages  for  their 
alleged  wrongful  refusal  to  register  him  as  a  voter,  and 
when  he  has  petitioned  a  court  of  the  state  for  a  man- 
damus to  compel  the  state  officers  to  register  him  as  a 
voter,  and  the  state  court  of  last  resort  has  entered  judg- 
ment against  him  on  the  grounds  that  if  the  provisions 
of  the  state  constitution  are  repugnant  to  the  XV  Amend- 
ment they  are  void  and  registrars  appointed  thereunder 
had  no  power  to  act,  they  could  not  be  liable  to  him  in 

14  U.  S.  v.  Cruikshank,  92  U.  S.  542. 

14  a  Wiley  v.  Sinkler,  179  U.  S.  58;  Swafford  v.  Templeton,  185  id.  487. 
14  ft  Giles  v.  Harris,   189  U.   S.  475 ;    Harlan,  Brewer,  and  Brown,  JJ., 
dissented. 


THE   RIGHT   OF    SERVING   ON    JURIES.  295 

damages  for  their  refusal  to  register  him,  and  they  cannot 
be  compelled  by  mandamus  to  register  him;  and  the  Su- 
preme Court  of  the  United  States  cannot  reverse  the 
judgment  of  the  state  court  upon  writ  of  error,  for  the 
state  court  has  denied  relief  to  the  plaintiff  in  error  for 
reasons  independent  of  the  federal  right  upon  which  he 
claimed.140 

The  right  of  serving  on  juries. 

122.  The  right  of  serving  as  a  juror  being  incident  to 
citizenship,  a  state  cannot  so  regulate  the  selection  of 
jurors  in  its  courts  as  to  prevent  citizens  of  African  de- 
scent from  serving  as  jurors.15 

Congressional  regulation  of  federal  elections. 

123.  Section  4  of  Article  I  of  the   Constitution  de- 
clares that,  "the  times,  places  and  manner  of  holding 
elections  for  senators  and  representatives,  shall  be  pre- 
scribed in  each  state  by  the  legislature  thereof;  but  the 
Congress  may  at  any  time  by  law  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators. ' ' 
Under  this  clause  of  the  Constitution,  Congress  without 
question  provided  for  the  election  of  its  members  by 
separate  districts,  composed  of  contiguous  territory,  and 
required  the  election  in  every  district  throughout  the 
United  States  to  be  held  on  the  Tuesday  after  the  first 
Monday  of  November  in  every  second  year.    In  other  re- 
spects, however,  the  exercise  of  power  by  Congress  on 
this  subject  has  been  contested  in  the  courts.      In  the 
several  cases  it  has  been  held,  that  Congress,  having  a 
supervisory  control  over  the  election  of  its  members,  and 

"c.Giles  v.  Teasley,  193  U.  S.  146. 

15 XV  Amendment;  Strauder  v.  West  Virginia,  100  U.  S.  303;  Virginia  v. 
Kives,  ibid.  313;  Ex  parte  Virginia,  ibid.  339;  Neal  v.  Delaware,  103  id. 
370;  Gibson  v.  Mississippi,  162  id.  565;  Carter  v.  Texas,  177  id.  442; 
Eogers  v.  Alabama,  192  id.  226. 


296  BIGHTS   OF    PERSONS   AND    OF    PROPERTY. 

being  authorized  to  make  regulations  of  its  own,  or  to 
alter  regulations  made  by  any  state,  can  by  statute  impose 
duties  on  state  officers  of  election,  punish  the  non-per- 
formance by  such  officers  of  their  duties,  whether  imposed 
by  laws  of  the  state  or  by  acts  of  Congress,  and  provide 
for  the  appointment  of  officers  of  the  United  States  to 
execute  the  regulations  as  made  by  Congress  or  by  the 
states.16  It  has  also  been  held  that  Congress  can,  for  the 
protection  of  the  voters  at  congressional  elections,  punish 
acts  of  violence  or  intimidation  done  in  furtherance  of  a 
conspiracy  to  prevent  a  voter  from  exercising  the  fran- 
chise at  such  elections;17  and  it  can  punish  interference 
with  election  officers  when  engaged  in  the  discharge  of 
their  official  duties.18 

The  appointment  and  mode  of  appointment  of  electors 
belong  exclusively  to  the  states.  Congress  is  empowered 
to  determine  the  time  of  choosing  electors  and  the  day 
on  which  they  shall  give  their  votes,  which  must  be  the 
same  day  throughout  the  United  States,  but  otherwise  the 
power  and  jurisdiction  of  the  state  is  exclusive,  with  the 
exception  of  the  provisions  as  to  the  number  of  electors 
and  the  ineligibility  of  certain  persons,  so  framed  as  to 
exclude  federal  influence.19 

Immigrants  and  aliens* 

124.  The  states  cannot,20  and  the  United  States  can,21 
control  and  regulate  immigration  and  the  residence  of 
aliens  in  the  United  States.  This  power  is  an  incident  of 
sovereignty  which  cannot  be  alienated  in  the  exercise  of 

16  Ex  parte  Siebold,  100  U.  S.  371;  Ex  parte  Clarke,  ibid.  399;  In  re  Coy, 
127  id.  731. 

"Ex  parte  Yarbrough,  110  U.  S.  651. 
18  Connors  v.  U.  S.,  158  U.  S.  408. 
"McPherson  v.  Blacker,  146  U.  S.  1;  In  re  Green,  134  id.  377. 

20  Chy  Lung  v.  Freeman,  92  U.  S.  275,  280. 

21  The  Chinese  Exclusion  Case,  130  U.  S.  581. 


IMMIGRANTS   AND  ALIENS.  297 

the  treaty-making  power.22  Congress  may,  therefore, 
prohibit  the  immigration  of  any  class  of  persons ;  it  may 
expel,  and  compel  the  deportation  of,  resident  aliens; 
and 23  it  may  forbid  the  transit  of  aliens  across  the  terri- 
tory of  the  United  States.24  Congress  may  authorize  the 
courts  to  investigate  and  ascertain  the  facts  on  which  de- 
pends the  right  to  land  or  to  remain  in  the  country ; 2B  or 
it  may  entrust  to  administrative  officers  the  final  deter- 
mination of  these  facts ; 26  and  the  decisions  of  such  officers 
will  constitute  due  process  of  law,27  and  will  be  binding  on 
the  courts.  Congress  may  authorize  a  United  States  com- 
missioner to  determine  the  facts  upon  which  citizenship 
depends.28  While  Congress  may,  as  a  means  to  give  effect 
to  the  legislation  excluding  or  expelling  aliens,  authorize 
their  detention  in  temporary  confinement,  Congress 
nevertheless  cannot,  unless  provision  be  made  for  a  judi- 
cial trial,  declare  an  unlawful  residence  in  the  country  to 
be  an  infamous  crime  punishable  by  imprisonment  at 
hard  labour.29  An  administrative  officer  when  executing 
a  statute  affecting  the  liberty  of  persons  may  not  disregard 
the  fundamental  requirement  of  due  process  of  law.  There 
must,  therefore,  be  adequate  notice  to,  and  a  hearing  of, 
the  person  affected ; 30  but  defects  in  the  form  of  the  pro- 
ceeding will  not  affect  its  validity,  or  the  finality  of  its 
conclusion.31  The  existing  legislation  is  applicable  only 
to  persons  owing  allegiance  to  a  foreign  government,  and, 

22  The  Chinese  Exclusion  Case,  supra. 

23  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698. 
^Fok  Yung  Yo  v.  U.  S.,  185  U.  S.  296. 

25  U.  S.  v.  Jung  Ah  Lung,  124  U.  S.  621. 

26  U.  S.  v.  Sing  Tuck,  194  U.  S.  161;  Li  Sing  v.  U.  S.,  180  id.  486. 

27  Nishimura  Ekiu  v.  U.  S.,  142  U.  S.  651,  660. 

28  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649;  Chin  Bak  Kan  v.  U.  S.,  186 
id.  193. 

29  Wong  Wing  v.  U.  S.,  163  U.  S.  228. 

80  The  Japanese  Immigrant  Case,  189  U.  S.  86. 

81  Fong  Yue  Ting,  149  U.  S.  698,  729 ;  Chin  Bak  Kan  v.  U.  S.,  186  id.  193. 


298  BIGHTS   OF   PEESONS   AND   OF    PROPERTY. 

therefore,  does  not  affect  citizens  of  Porto  Eico ; 32  nor 
does  it  affect  a  child  born  in  the  United  States  of  parents 
who,  while  remaining  aliens,  have  a  permanent  domicile 
and  residence  in  the  United  States.33 

Personal  and  property  rights. 

125.  The  states  retain  full  control  over  the  personal  and 
property  rights  of  their  citizens  and  of  residents  within 
their  territory,  subject  to  the  restraints  imposed  by  the 
Constitution.34  The  states  retain  the  power  of  regulating 
the  tenure  of  real  property  within  their  respective  limits, 
including  the  mode  of  its  acquisition  and  transfer,  the 
rules  of  its  descent,  and  the  extent  to  which  a  testamentary 
disposition  may  be  made  of  such  land  by  its  owner,  and  a 
state  may  forbid  the  United  States,  by  reason  of  its  not 
being  a  corporation  created  by  the  laws  of  that  state,  to 
take  by  devise  lands  within  the  state.35  The  states  may 
legislate  specially  for  the  sale  or  investment  of  the  estates 

32  Gonzales  v.  Williams,  192  U.  S.  1. 

33  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649. 

34  The  first  eight  Amendments  bind  only  the  federal  government:    Spies 
v.  Illinois,  123  U.  S.  131,  166;  Eilenbecker  v.  Plymouth  County,  134  id.  31; 
In  re  Kemmler,  136  id.  436;  McElvaine  v.  Brush,  142  id.  155;  Thorington 
v.  Montgomery,  147  id!.  490;  Moore  v.  Missouri,  159  id.  673;  Brown  v.  New 
Jersey,  175  id.  172;  C.  C.  D.  Co.  v.  Ohio,  183  id.  238;  Ohio  v.  Dollison,  194  id. 
445.     The  provision  of  the  XIV  Amendment  that  "no  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States"  protects,  it  seems,  only  those  rights  which  are  secured 
against  state  encroachment  by  other  clauses  of  the  Constitution.     See  In  re 
Kemmler,  136  U.  S.  436,  448;  Giozza  v.  Tiernan,  148  id.  657,  661;  Duncan 
v.  Missouri,  152  id.  377,  382 ;  Maxwell  v.  Dow,  176  id.  581 ;  Slaughter  House 
Cases,  16  Wall.  36,  79;  Bartemeyer  v.  Iowa,  18  id.  129;  Presser  v.  Illinois, 
116  U.  S.  252;  Mugler  v.  Kansas,  123  id.  623;  In  re  Lockwood,  154  id.  116; 
Gray  v.  Connecticut,  159  id.  74;  Plessy  v.  Ferguson,  163  id.  537;  Holden  v. 
Hardy,  169  id.  366 ;  Gumming  v.  Board  of  Education,  175  id.  528 ;  W.  P.  S. 
C.  v.  Casperson,  193  id.  189 ;  Ohio  v.  Dollison,  194  id.  445.     The  Amendment 
does  not  extend  to  state  legislation  the  restrictions  which  the  first  eight 
Amendments  impose  upon  congressional  action:  Maxwell  v.  Dow,  176  U.  S. 
581,  597.     Harlan,  J.,  dissented. 

85  U.  S.  v.  Fox,  94  U.  S.  315. 


PERSONAL  AND   PROPERTY   RIGHTS.  299 

of  infants  and  other  persons  not  sui  juris.™  The  shores 
of  navigable  waters,  and  the  soil  under  those  waters,  were 
not  granted  by  the  Constitution  to  the  United  States,  but 
were  reserved  to  the  riparian  states  respectively,  and  new 
states  have  the  same  rights,  sovereignty,  and  jurisdiction 
over  this  subject  as  the  original  states.37  The  United 
States  having  no  proprietary  title  to  lands  on  the  shore 
of  a  state,  under  navigable  waters  and  below  high-water 
mark,  can  grant  no  valid  title  thereto.38  A  state  may, 
therefore,  prohibit,  or  license  under  regulation,  the  taking 
of  oysters  and  fish  in  the  navigable  waters  within  its 
limits.39  The  states  may  determine  what  classes  of  per- 
sons shall  come  and  remain  within  their  territory,40  pro- 
vided, of  course,  that  they  do  not  thereby  impair  the 
rights  of  intercourse  and  traffic  secured  by  the  Constitu- 
tions to  citizens  of  other  states,  nor  come  into  conflict  with 
the  regulations  made  by  the  United  States  as  to  immigra- 
tion and  the  residence  of  aliens.41  The  Constitution  makes 
no  provision  for  the  protection  of  the  citizens  of  the  sev- 
eral states  in  their  religious  liberty,  and  imposes  no  re- 
straints on  the  states  in  that  respect.  Therefore,  a  judg- 
ment of  a  state  court  imposing  a  fine  upon  a  clergyman 
for  violation  of  a  municipal  ordinance  regulating  the  place 
and  manner  of  conducting  funeral  services,  is  not  subject 
to  review  in  the  Supreme  Court  of  the  United  States.42 

36  Hoyt  v.  Sprague,  103  U.  S.  613. 

37  Pollard  v.  Hagan,  3  How.  212;   Weber  v.  Harbour  Commissioners,  18 
Wall.  57;  Shively  v.  Bowlby,  152  U.  S.  1;  M.  T.  Co.  v.  Mobile,  187  id.  479. 

88  Pollard  v.  Hagan,  3  How.  212;  Goodtitle  v.  Kibbe,  9  id.  471;  Doe  v. 
Beebe,  13  id.  25;  U.  S.  v.  M.  E.  Co.,  189  U.  S.  391. 

39  Smith  v.  Maryland,  18  How.  71;  McCready  v.  Virginia,  94  U.  S.  391. 

40  Holmes  v.  Jennison,  14  Pet.  540 ;  Groves  v.  Slaughter,  15  id.  449 ;  Prigg 
v.  Pennsylvania,  16  id.  539. 

41  Supra,  Sec.  124. 

42  Permoli  v.  First  Municipality,  3  How.  589. 

20 


300  BIGHTS   OF   PERSONS   AND   OF   PROPERTY. 

The  rights  within  a  state  of  citizens  of  other  states. 

126.  Section  2  of  Article  IV  of  the  Constitution  de- 
clares that  "the  citizens  of  each  state  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
states. "  As  Miller,  J.,  said,  in  the  Slaughter  House 
Cases,43  the  "sole  purpose "  of  this  constitutional  pro- 
vision "was  to  declare  to  the  several  states,  that  whatever 
those  rights,  as  you  grant  or  establish  them  to  your  own 
citizens,  or  as  you  limit,  or  qualify,  or  impose  restrictions 
on  their  exercise,  the  same,  neither  more  nor  less,  shall  be 
the  measure  of  the  rights  of  citizens  of  other  states  within 
your  jurisdiction. ' ' 44  Washington,  J.,  said,  in  Corfield  v. 
Cory  ell,45  the  privileges  and  immunities  in  question  are 
those  "which  are  fundamental,  which  belong  of  right  to 
all  citizens  of  all  free  governments,  and  which  have  at  all 
times  been  enjoyed  by  citizens  of  the  several  states  which 
compose  this  Union,  from  the  time  of  their  becoming  free, 
independent,  and  sovereign/'  including  "protection  by 
the  government,  with  the  right  to  acquire  and  possess 
property  of  every  kind,  and  to  pursue  and  obtain  happi- 
ness and  safety,  subject,  nevertheless,  to  such  restraints 
as  the  government  may  prescribe  for  the  general  good  of 
the  whole. "  In  Paul  v,.  Virginia,46  Field,  J.,  said,  "The 
privileges  and  immunities  secured  to  citizens  of  each  state 
in  the  several  states  .  .  .  are  those  privileges  and  im- 
munities which  are  common  to  the  citizens  in  the  latter 
states  under  their  constitutions  and  laws  by  virtue  of  their 
being  citizens.  Special  privileges  enjoyed  by  citizens  in 
their  own  states  are  not  secured  in  other  states  by  this 
provision.  It  was  not  intended  by  the  provision  to  give 

43 16  Wall.  77. 

44  See,  on  the  same  line,  Kimmish  v.  Ball,  129  U.  S.  217,  222.     Compare 
T.  I.  Co.  v.  Connecticut,  185  id.  364. 
46  4  Wash.  C.  C.  371. 
46  8  Wall.  180. 


EIGHTS    OF    CITIZENS    OF    OTHER   STATES.  301 

to  the  laws  of  one  state  any  operation  in  other  states. 
They  can  have  no  such  operation,  except  by  the  permis- 
sion, express  or  implied,  of  those  states.  The  special 
privileges  which  they  confer  must,  therefore,  be  enjoyed 
at  home,  unless  the  assent  of  other  states  to  their  enjoy- 
ment therein  be  given."  It  is  clear  that  this  provision 
guarantees  the  privileges  and  immunities  of  citizens  of 
other  states,  and  has  no  reference  to  action  by  a  state  in 
respect  to  its  own  citizens.47  "The  Constitution  of  the 
United  States  does  not  make  the  privileges  and  immunities 
enjoyed  by  the  citizens  of  one  state  under  the  constitution 
and  laws  of  that  state  the  measure  of  the  privileges  and 
immunities  to  be  enjoyed,  as  of  right,  by  a  citizen  of 
another  state  under  its  constitution  and  laws."48  Nor 
does  this  constitutional  provision  vest  the  citizens  of  one 
state  with  any  interest  in  the  common  property  of  citizens 
of  another  state.  Therefore,  a  statute  of  a  state  by  which 
other  than  its  own  citizens  are  prohibited  from  planting 
or  taking  oysters  from  the  soil  which  is  covered  by  the 
tide-waters  of  that  state,  is  not  a  violation  of  any  privilege 
or  immunity  of  citizens,  for,  subject  to  the  paramount 
right  of  navigation,  the  regulation  of  which  in  relation  to 
foreign  and  interstate  commerce  has  been  granted  to  Con- 
gress by  the  Constitution,  each  state  owns  the  soil  of  all 
tide-waters  within  its  jurisdiction,  and  may  appropriate 
them  to  be  used  by  its  citizens  in  common  for  cultivating 
and  taking  fish,  etc.,  if  navigation  be  not  thereby  ob- 
structed.49 Nor  does  this  constitutional  provision  require 
a  state  to  confer  upon  citizens  of  other  states  peculiar 
privileges  granted  to  its  own  citizens;  thus,  the  privilege 
of  community  of  acquets  or  gains  as  between  married 

47  Bradwell  v.  State,  16  Wall.  130. 

48  Harlan,  J.,  in  McKane  v.  Durston,  153  U.  S.  684,  687. 

49  McCready  v.  Virginia,  94  U.  S.  391.     See  also  Geer  v.  Connecticut,  161 
id.  519. 


302  BIGHTS   OF   PERSONS  AND   OF   PEOPEETY. 

persons  in  Louisiana,  as  regards  lands  in  Louisiana  ac- 
quired by  a  citizen  of  Mississippi  who,  while  living  in  that 
state,  has  married  a  woman  born  in  Louisiana,  cannot  be 
claimed  as  a  constitutional  right,  for  the  wife  by  her  mar- 
riage became  a  citizen  of  Mississippi.50  On  the  same 
principle,  a  state  may  enact  a  statute  of  limitations,  dis- 
criminating, as  regards  suits  against  non-resident  defend- 
ants, against  creditors,  if  citizens  of  other  states,  and  in 
favour  of  creditors  who  are  citizens  of  the  state.51  On  the 
other  hand,  a  state  cannot,  without  contravening  this  con- 
stitutional provision,  so  discriminate  by  taxation  against 
either  the  natural  products  of,  or  the  goods  manufactured 
in,  another  state,  as  to  hinder  the  citizens  of  that  other 
state  in  their  exercise  of  the  rights  of  freely  transporting 
and  selling  their  goods  manufactured  or  unmanufac- 
tured.52 Nor  can  a  state  by  taxation,  or  otherwise,  restrict 

80  Conner  v.  Elliott,  18  How.  593;  Curtis,  J.,  said,  "We  do  not  deem  it 
needful  to  attempt  to  define  the  word  'privileges'  in  the  clause  of  the  Con- 
stitution. It  is  safer  and  more  in  accordance  with  the  duty  of  a  judicial 
tribunal,  to  leave  its  meaning  to  be  determined  in  each  case,  upon  a  view  of 
the  particular  rights  asserted  and  denied  therein,  and  especially  is  this  true, 
when  we  are  dealing  with  so  broad  a  provision,  involving  matters  not  only 
of  great  delicacy  and  importance,  but  which  are  of  such  a  character  that  any 
merely  abstract  definition  could  scarcely  be  correct;  and  a  failure  to  make 
it  so  would  certainly  produce  mischief. ' '  In  McCready  v.  Virginia,  94  U.  S. 
395,  Waite,  C.  J.,  after  referring  to  the  view  thus  expressed  by  Curtis,  J., 
added,  ' '  this  clearly  is  the  safer  course  to  pursue. ' '  These  dicta,  of  course, 
mean  only  that  in  the  decision  of  a  cause,  the  court  ought  to  confine  them- 
selves to  the  case  at  bar  and  ought  not  so  to  generalize  as  to  prejudice  cases 
that  have  not  yet  arisen  for  determination,  but  they  do  not  mean  that  the 
court,  in  order  to  arrive  at  a  decision,  should  reason  empirically,  and  should 
avoid  a  clear  statement  of  the  general  principles  whose  application  must 
necessarily  determine  the  particular  case.  If  they  did  mean  that,  they 
would  establish  a  ''rule"  which  is  not  "salutary,"  and  they  would  lay 
down  a  "course"  which  is  not  the  "safer"  one  to  pursue. 

"Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72.     Strong,  J.,  dissented. 

52  Ward  v.  Maryland,  12  Wall.  418;  Welton  v.  Missouri,  91  U.  S.  275; 
Guy  v.  Baltimore,  100  id.  434 ;  Webber  v.  Virginia,  103  id.  344 ;  Walling  v. 
Michigan,  116  id.  446;  Bobbins  v.  Shelby  County,  120  id.  489;  Corson  v. 
Maryland,  ibid.  502;  Asher  v.  Texas,  128  id.  129.  But  see  Hinson  v.  Lott, 
8  Wall.  148;  Downham  v.  Alexandria  Council,  10  id.  173;  Machine  Co.  v. 


FOEEIGN    CORPORATIONS.  303 

the  exercise  by  the  citizens  of  other  states  of  their  right  of 
free  transit  from  place  to  place  within  the  United  States, 
in  order  to  approach  the  seat  of  government  of  the  United 
States  and  the  federal  offices  in  the  various  states.53  Nor 
can  a  state  by  statute  provide  that  in  the  distribution  of 
the  assets  of  insolvent  debtors  local  creditors  shall  be 
given  priority  over  creditors  who  are  citizens  of  other 
states.54 

Foreign  corporations. 

127.  Foreign  corporations  are,  in  the  states  of  the 
United  States,  corporations  created  by  any  other  state,  or 
by  a  foreign  government.  A  joint  stock  partnership  or- 
ganized under  the  laws  of  a  foreign  country,  with  a  statu- 
tory recognition  of  the  distinctive  entity  of  the  association 
and  with  powers  of  transfer  of  shares  and  succession  of 
members,  and  the  right  to  sue  and  be  sued  as  an  aggre- 
gation, is  regarded  in  the  United  States  as  a  foreign  cor- 
poration.55 A  corporation  is  not,  in  its  corporate  ca- 
pacity, a  citizen,  within  the  meaning  of  the  Constitution; 56 
but  for  jurisdictional  purposes  there  is  a  conclusive  pre- 
sumption of  law  that  it  is  composed  of  citizens  of  the  state 
which  created  it,  and  it  may  sue  and  be  sued  in  its  cor- 
porate name.57  A  foreign  corporation  is  not  a  citizen 

Gage,  100  U.  S.  676;  Tiernan  v.  Einker,  102  id.  123;  Ficklen  v.  Shelby 
County,  145  id.  1;  Emert  v.  Missouri,  156  id.  296;  Bash  v.  Farley,  159 
id.  263. 

58  Crandall  v.  Nevada,  6  Wall.  35. 

"Blake  v.  McClung,  172  U.  S.  239,  176  id.  59;  Sully  v.  American  Nat. 
Bank,  178  id.  289. 

55  L.  I.  Co.  v.  Massachusetts,  10  Wall.  566. 

56  The  Bank  of  U.  S.  v.  Deveaux,  5  Cr.  61 ;  Paul  v.  Virginia,  8  Wall.  168 ; 
Blake  v.  McClung,  172  U.  S.  239 ;  O.  I.  Co.  v.  Daggs,  ibid.  557. 

67  L.,  C.  &  C.  E.  v.  Letson,  2  How.  497;  Marshall  v.  B.  &  O.  E.,  16  id.  314; 
C.  D.  Co.  v.  Shepherd,  20  id.  227 ;  O.  &  M.  E.  v.  Wheeler,  1  Bl.  286 ;  Express 
Co.  v.  Kountze  Bros.,  8  Wall.  342;  Ey.  Co.  v.  Whitton,  13  id.  270;  St.  L. 
&  S.  F.  Ey.  v.  James,  161  U.  S.  545;  St.  J.  &  G.  I.  E.  v.  Steele,  167  id.  659; 
Blake  v.  McClung,  172  id.  239 ;  L.,  N.  A.  &  C.  Ey.  v.  L.  T.  Co.,  174  id.  552 ; 
S.  Ey.  v.  Allison,  190  id.  326. 


304  BIGHTS   OF   PERSONS   AND   OF    PROPERTY. 

within  the  meaning  of  Section  2  of  Article  IV  of  the 
Constitution,  which  declares  that  "the  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  states/' 58  While  corporations  are 
persons  within  the  meaning  of  the  XIV  Amendment,59 
they  are  not  entitled  to  such  equal  protection  of  the  laws 
as  to  have  the  right  to  do  business  within  a  state, 
other  than  that  of  their  incorporation,  without  be- 
ing hampered  by  such  discriminating  conditions  as  the 
state  may  choose  to  impose.60  A  corporation  exists  only 
in  contemplation  of  law  and  by  force  of  law,  and  it  can 
have  no  legal  existence  beyond  the  bounds  of  the  sover- 
eignty creating  it,  unless  it  be,  by  comity,  permitted  to 
exist  within  the  bounds  of  some  other  sovereignty,61 
save  only  that  a  state  may  not  exclude  from  its  limits  a 
corporation  which  is  in  the  employ  of  the  federal  govern- 
ment,62 or  which  is  engaged  in  interstate  or  foreign  com- 

88  Paul  v.  Virginia,  8  Wall.  168 ;  P.  M.  Co.  v.  Pennsylvania,  125  U.  S.  181 ; 
N.  &  W.  E.  v.  Pennsylvania,  136  id.  114;  Blake  v.  McClung,  172  id.  239; 
Sully  v.  American  Nat.  Bank,  178  id.  289. 

89  Santa  Clara  County  v.  S.  P.  E.,  118  U.  S.  394;  C.,  C.  &  A.  E.  v.  Gibbes, 

142  id.  386;  C.  &  L.  T.  Co.  v.  Sandford,  164  id.  578;  G.,  C.  &  S.  F.  Ey.  v. 
Ellis,  165  id.  150;  Smyth  v.  Ames,  169  id.  466;  L.  S.  &  M.  S.  Ey.  v.  Smith, 
173  id.  684;  P.  M.  Co.  v.  Pennsylvania,  125  id.  181;  M.  P.  Ey.  v.  Mackey, 
127  id.  205;  M.  &  S.  L.  Ey.  v.  Herrick,  ibid.  210;  M.  &  S.  L.  Ey.  v.  Beckwith, 
129  id.  26,  28. 

60  P.  F.  Assn.  v.  New  York,  119  U.  S.  110;  P.  M.  Co.  v.  Pennsylvania,  125 
id.  181;  O.  I.  Co.  v.  Daggs,  172  id.  557;  W.-P.  O.  Co.  v.  Texas,  177  id.  28; 
Sully  v.  American  Nat.  Bank,  178  id.  289;   cf.  N.  Y.,  L.  E.  &  W.  E.  v. 
Pennsylvania,  153  id.  628;  Nutting  v.  Massachusetts,  183  id.  553. 

61  Bank  of  Augusta  v.  Earle,  13  Pet.  519 ;  Eunyan  v.  Coster,  14  id.  122 ; 
O.  &  M.  E.  v.  Wheeler,  1  Bl.  286 ;  P.  M.  Co.  v.  Pennsylvania,  125  U.  S.  181 ; 
H.  S.  M.  Co.  v.  New  York,  143  id.  305 ;  Ashley  v.  Eyan,  153  id.  436 ;  Hooper 
v.  California,  155  id.  648;  New  York  v.  Eoberts,  171  id.  658;  N.  Y..  L.  I. 
Co.  v.  Cravens,  178  id.  389;   Nutting  v.  Massachusetts,  183  id.  553.     See 
also  D.  C.  &  I.  Co.  v.  Barton,  ibid.  23 ;  D.  G.  Co.  v.  U.  S.  G.  Co.,  187  id.  611. 

82  P.  M.  Co.  v.  Pennsylvania,  125  U.  S.  181 ;  H.  S.  M.  Co.  v.  New  York, 

143  id.  305. 


FOREIGN    CORPORATIONS.  305 

merce.63  Of  course,  if  there  be  no  prohibitory  legislation, 
it  is  not  competent  for  an  individual  citizen,  not  personally 
interested  in  the  corporation,  to  object  to  the  doing  of 
business  within  a  state  by  a  foreign  corporation.64  Un- 
less the  local  law  prohibit,  a  foreign  corporation,  if  its 
charter  so  authorizes,  may  sue  and  be  sued  in  the  courts  of 
a  state,65  make  contracts,66  acquire  and  hold  real  estate,67 
buy  and  sell  bills  of  exchange,68  and  negotiate  and  is- 
sue policies  of  life  and  fire  insurance.69  Corporations, 
by  doing  business  within  the  bounds  of  a  sovereignty  other 
than  that  which  has  created  them,  do  not  become  cor- 
porations of  that  other  sovereignty,  nor  lose  privileges 
which  are  incident  to  their  citizenship  in  the  sovereignty 
which  created  them.  Therefore,  a  railway  corporation 
of  Maryland  does  not,  by  becoming  lessee  of  a  railway 
in  Virginia,  forfeit  its  right  to  remove  into  the  Circuit 
Court  of  the  United  States  a  suit  brought  against  it  in  the 
courts  of  Virginia  by  a  citizen  of  that  state.70  A  state 

63  P.  M.  Co.  v.  Pennsylvania,  125  U.  S.  181;  McCall  v.  California,  136  id. 
104;  N.  &  W.  E.  v.  Pennsylvania,  ibid.  114;  Crutcher  <o.  Kentucky,  141  id. 
47;  H.  S.  M.  Co.  v.  New  York,  143  id.  305;  Ashley  v.  Eyan,  153  id.  436; 
P.  T.  C.  Co.  v.  Adams,  155  id.  688;  cf.  California  v.  C.  P.  E.,  127  id.  1; 
Maine  v.  G.  T.  Ey.,  142  id.  217. 

"Waite,  C.  J.,  said  in  P.  T.  Co.  v.  W.  U.  T.  Co.,  96  U.  S.  1,  13,  "No 
citizen  of  a  state  can  enjoin  a  foreign  corporation  from  pursuing  its  busi- 
ness. Until  the  state  acts  in  its  sovereign  capacity,  individual  citizens  can- 
not complain.  The  state  must  determine  for  itself  when  the  public  good 
requires  that  its  implied  assent  to  the  admission  shall  be  withdrawn. ' ' 

65  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  587 ;  Cowles  v.  Mercer  County, 
7  Wall.  118. 

66  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  591;  Eunyan  v.  Coster,  14  id. 
122,  129. 

67  Eunyan  v.  Coster,  14  Pet.  122;  S.  F.  et  A.  des  E.  U.  v.  Milliken,  135 
U.  S.  304. 

68  Bank  of  Augusta  v.  Earle,  13  Pet.  519. 

69  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  id.  410;  L.  I.  Co. 
v.  Massachusetts,  ibid.  566;  P.  F.  A.  v.  New  York,  119  U.  S.  110. 

70Eailroad  Co.  v.  Koontz,  104  U.  S.  5.  See  also  St.  L.  &  S.  F.  Ey.  v. 
James,  161  id.  545;  L.,  N.  A.  &  C.  Ey.  v.  L.  T.  Co.,  174  id.  552;  S.  Ey. 
v.  Allison,  190  id.  326. 


306  EIGHTS   OF   PEKSONS   AND   OF   PROPEBTY. 

may  discriminate  in  favour  of  its  own  corporations  and 
against  foreign  corporations ; 71  it  may  tax  foreign  cor- 
porations ; 72  it  may  arbitrarily  refuse  to  foreign  corpora- 
tions permission  to  do  business  within  its  territory,  or  it 
may  give  its  consent  on  any  conditions  which  "are  not 
repugnant  to  the  Constitution  or  laws  of  the  United  States, 
nor  inconsistent  with  those  rules  of  public  law  which 
secure  the  jurisdiction  and  authority  of  each  state  from 
encroachment  by  all  others,  or  that  principle  of  natural 
justice  which  forbids  condemnation  without  opportunity 
for  defense ; ' ' 73  it  may  impose  on  a  foreign  corporation  a 
condition  that  service  of  process  on  the  resident  agent 
representative  of  the  corporation  on  reasonable  notice 
shall  be  considered  a  service  upon  the  corporation,74 
and  it  may  prohibit  the  transaction  of  the  business  of  in- 
surance within  its  bounds  by  a  foreign  corporation,  or  it 
may  impose  in  its  discretion  conditions  on  the  perform- 
ance of  such  business,  for  contracts  of  insurance  being 
covenants  for  indemnity  and  not  articles  of  commerce,  the 
negotiation  and  issue  of  policies  of  insurance  are  not  trans- 
actions of  foreign  or  interstate  commerce.75  But  a  state 
cannot,  by  any  alteration  of  the  conditions  imposed  upon 
foreign  corporations  doing  business  within  the  state,  im- 
pair the  obligation  of  contracts  lawfully  made.76  So  also 

71  Paul  v.  Virginia,  8  Wall.  168 ;  Ducat  v.  Chicago,  10  id.  410. 

72  Paul  v.  Virginia,  8  WaU.  168 ;  Ducat  v.  Chicago,  10  id.  410  ;  L.  I.  Co.  v. 
Massachusetts,  ibid.  566;  H.  S.  M.  Co.  v.  New  York,  143  U.  S.  305.     See 
also  Kidd  v.  Alabama,  188  id.  730. 

73  L.  I.  Co.  v.  French,  18  How.  404,  407;  Paul  v.  Virginia,  8  WaU.  168; 
St.  Clair  v.  Cox,  106  U.  S.  350,  356;  H.  S.  M.  Co.  v.  New  York,  143  id.  305; 
Ashley  v.  Byan,  153  id.  436;  Hooper  v.  California,  155  id.  648;  New  York 
v.  Eoberts,  171  id.  658 ;  Bedford  v.  E.  B.  &  L.  Assn.,  181  id.  227. 

74  L.  I.  Co.  v.  French,  18  How.  404;  St.  Clair  v.  Cox,  106  U.  S.  350,  356. 

75  Paul  v.  Virginia,  8  Wall.  168;  Ducat  v.  Chicago,  10  id.  410;  L.  I.  Co. 
v.  Massachusetts,  ibid.  566 ;  P.  F.  Assn.  v.  New  York,  119  U.  S.  110 ;  Hooper 
v.  California,  155  id.  648 ;  N.  Y.  L.  I.  Co.  v.  Cravens,  178  id.  389. 

76  Bedford  v.  E.  B.  &  L.  Assn.,  181  U.  S.  227;  ef.  D.  G.  Co.  v.  U.  S.  G. 
Co.,  187  id.  611. 


FOREIGN    CORPORATIONS.  307 

a  state  cannot  rightfully  impose  as  a  condition  the  non- 
exercise  by  a  corporation  of  its  right  of  removing  to  the 
courts  of  the  United  States  actions  brought  against  it  in 
the  courts  of  the  state.77  If,  however,  a  state  prohibit  a 
foreign  corporation  from  doing  business  within  its  bounds 
because  the  corporation  will  not  forego  the  exercise  of 
its  right  of  removal  of  actions,  the  corporation  cannot  be 
protected  by  an  injunction  issued  by  the  courts  of  the 
United  States ; 78  but  a  state  statute,  requiring  foreign 
corporations  as  a  condition  of  doing  business  in  a  state  to 
stipulate  that  they  will  not  remove  into  the  courts  of  the 
United  States  causes  which  under  the  laws  of  the  United 
States  they  would  be  entitled  to  remove,  is  void ; 79  and  a 
servant  of  the  corporation80  cannot  be  convicted  for 
doing  business  for  a  corporation  which  had  not  complied 
with  the  statute.81  A  substantial  compliance  by  a  foreign 
corporation  with  the  condition  on  which  it  is  permitted  to 
do  business  within  the  bounds  of  another  sovereignty  is 
sufficient;  thus,  the  law  of  Colorado  requiring  the  filing 
of  a  certificate  "designating  the  principal  place  where 
the  business  of  such  corporation  shall  be  carried  on  in 
this  state,  and  an  authorized  agent  or  agents,  residing  at 
its  principal  place  of  business,  upon  whom  process  may 
be  served/'  is  sufficiently  complied  with  by  a  certificate 
naming  the  town  in  which  the  business  is  to  be  carried  on 
and  stating  "that  the  general  manager  of  said  corpora- 
tion residing  at  the  said  principal  place  of  business,  is  the 
agent  upon  whom  process  may  be  served, ' '  but  not  giving 
the  name  of  the  general  manager.82  A  foreign  corpora- 
tion does  not,  by  making  a  single  contract  for  the  sale  of 

77  H.  I.  Co.  v.  Morse,  20  Wall.  445;  S.  P.  Co.  v.  Denton,  146  IT.  S.  202. 

78  Doyle  v.  C.  I.  Co.,  94  TJ.  S.  535;  Cable  v.  U.  S.  L.  I.  Co.,  191  id.  288. 

79  Barren  v.  Burnside,  121  U.  S.  186. 

80  In  this  case  an  engine  driver  of  a  foreign  railway  corporation. 

81  Barron  v.  Burnside,  121  U.  S.  186. 

82  Goodwin  v.  C.  M.  I.  Co.,  110  II.  S.  1. 


308  BIGHTS   OF   PEKSONS   AND   OF   PROPERTY. 

machinery,  come  within  the  provisions  of  a  statute  for- 
bidding foreign  corporations  to  "do  any  business " 
within  the  state,83  but  it  does  come  within  a  similar 
statute  when  it  loans  money  upon  a  note  and  mortgage 
solicited  by  its  agent  and  executed  within  the  state, 
although  the  instruments  especially  stipulate  that  they  are 
made  with  reference  to  and  under  the  laws  of  the  home 
state  of  the  corporation.84  Moreover,  a  foreign  insurance 
company  does  not  cease  to  do  business  within  the  state  by 
withdrawing  its  agent  and  refusing  new  risks  if  its  old 
policies  continue  in  force  and  premiums  are  paid  thereon 
by  the  policy-holders.85 

Every  one  who  deals  with  a  foreign  corporation  im- 
pliedly  subjects  himself  to  the  laws  of  the  foreign  govern- 
ment which  chartered  the  corporation,  so  far  as  those  laws 
affect  the  powers  and  obligations  of  the  corporation  or  the 
validity,  enforcement,  or  discharge  of  its  contracts ;  thus, 
for  instance,  a  holder  in  the  United  States  of  bonds,  issued 
by  a  railway  corporation  of  Canada,  but  negotiated,  and 
stipulated  to  be  paid,  in  the  United  States,  is  bound  by 
the  terms  of  a  statutory  scheme  of  arrangement  enacted 
by  the  Parliament  of  Canada  subsequently  to  the  issue 
and  sale  of  the  bonds.86  On  the  same  principle,  a  holder 
in  Louisiana  of  a  policy  of  life  insurance  issued  in  that 
state  by  a  Missouri  corporation  is  chargeable  with  notice 
of  the  insurance  laws  of  Missouri  substituting  the  in- 
surance commissioner  of  that  state  as  the  representative 
of  insolvent  insurance  companies.87 

83  C.  M.  Co.  v.  Ferguson,  113  U.  S.  727.     But  see  also  Fritts  v.  Palmer, 
132  id.  282;  F.  &  M.  C.  Co.  v.  Fitzgerald,  137  id.  98;  C.  N.  B.  &  L.  Assn.  v. 
Denson,  189  id.  408. 

84  C.  N.  B.  &  L.  Assn.  v.  Denson,  189  U.  S.  408. 
86  C.  M.  L.  I.  Co.  v.  Spratley,  172  U.  S.  602. 

86  C.  S.  Ey.  v.  Gebhard,  109  U.  S.  527. 

87  Keif e  v.  Eundle,  103  U.  S.  222.     See  also  Pinney  v.  Nelson,  183  id.  144. 


THE   I   AMENDMENT.  309 

The  I  Amendment. 

128.  The  I  Amendment  declares  that  "Congress  shall 
make  no  law  respecting  an  establishment  of  religion  or 
prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  govern- 
ment for  a  redress  of  grievances/'  The  clause  as  to 
religion  cannot  "be  invoked  as  a  protection  against  legis- 
lation for  the  punishment  of  acts  inimical  to  the  peace, 
good  order,  and  morals  of  society ; ' ' 88  nor  does  the  clause 
prevent  Congress  from  declaring  the  marriage,  in  a  terri- 
tory or  other  place  over  which  the  United  States  have 
exclusive  jurisdiction,  of  any  person  having  a  husband  or 
wife  living  and  undivorced,  etc.,  to  be  bigamy;  nor  can 
one  convicted  of  bigamy  successfully  defend  upon  his 
allegation  that  he  religiously  believed  in  plural  mar- 
riages ; 89  nor  does  this  clause  prohibit  a  contract  of  the 
commissioners  of  the  District  of  Columbia  with  an  incor- 
porated charitable  association  for  the  application  of  the 
moneys  of  the  United  States  in  the  construction  of  hospital 
buildings  in  which  paupers  are  to  be  housed  and  to  be 
cared  for  by  devotees  of  the  Roman  Catholic  faith ; 90  nor 
does  the  clause  as  to  the  freedom  of  speech  and  of  the 
press  prohibit  congressional  legislation  forbidding  the 
transportation  of  lottery  tickets  and  advertisements  by  the 
mails ; 91  nor  does  the  Amendment  forbid  congressional 
prohibition  of  the  immigration  of  anarchists.92 

88  Per  Field,  J.,  Davis  v.  Season,  133  U.  S.  333,  342. 

89  Eeynolds  v.  U.  S.,  98  U.  S.  145.     See  also  Mormon  Church  v.  U.  S.,  136 
id.  1. 

"Bradfield  v.  Eoberts,  175  U.  S.  291. 

81  In  re  Eapier,  143  U.  S.  110.     As  to  the  right  of  assembly  and  of  peti- 
tion, see  U.  S.  v.  Cruikshank,  92  U.  S.  542,  552. 
92  U.  S.  v.  Williams,  194  U.  S.  279,  292. 


310  BIGHTS   OF   PEKSONS  AND   OP   PKOPEETY. 

The  XIII  Amendment. 

129.  The  XIII  Amendment  declares  that  "  neither 
slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction, ' '  and  that  "Congress  shall 
have  power  to  enforce  this  Article  by  appropriate  legis- 
lation. "  This  provision  does  not  validate  an  act  of  Con- 
gress which  declares  it  to  be  a  crime  to  conspire  to  de- 
prive others  of  the  equal  protection  of  the  laws.93  Nor 
does  the  XIII  Amendment  prohibit  the  creation  of 
monopolies  by  a  state,  such  as  the  exclusive  right  of  pro- 
viding a  place  for  the  slaughtering  of  cattle.94  Nor  does 
it  prohibit  state  legislation  requiring  railway  companies 
to  furnish  separate  accommodations  for  white  and 
coloured  passengers.95  Nor  does  it  prohibit  congres- 
sional legislation  providing  for  the  punishment  of  sailors 
who  desert  a  ship  after  having  contracted  to  serve  upon 
it.96  Nor  does  it  invalidate  a  promissory  note  made  be- 
fore the  adoption  of  the  Amendment,  the  consideration 
for  which  note  was  the  price  of  a  slave,  slavery  having 
been  lawful  by  the  lex  loci  contractus  at  the  time  the  note 
was  given,97  and  this  rule  holds  even  where  the  vendor 
made  an  express  warranty,  warranting  the  chattel  to  be  a 
slave  for  life  and  the  warrantor's  title  to  him  to  be  clear 
and  perfect.98  And,  on  the  same  principle,  the  estate  of 
a  former  slave-owner  may  recover  from  one  who  used 
those  slaves  upon  his  own  plantation  a  fair  rental  for 
their  use,  estimated  to  the  time  when  they  became  free.99 

93  U.  S.  v.  Harris,  106  U.  S.  629. 

94  Slaughter  House  Cases,  16  Wall.  36. 
MPlessy  v.  Ferguson,  163  U.  S.  537. 

90  Eobertson  v.  Baldwin,  165  U.  S.  275. 

97  White  v.  Hart,  13  Wall.  646 ;  Boyce  v.  Tabb,  18  id.  546. 

98  Osborn  v.  Nicholson,  13  Wall.  654. 

99  Clay  v.  Field,  138  U.  S.  464. 


THE   XIV   AMENDMENT.  311 

The  XIV  Amendment. 

130.  The  XIV  Amendment  declares  that  "all  persons 
born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  state  wherein  they  reside.  No  state  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States ;  nor  shall  any 
state  deprive  any  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law ;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. ' '  The  pur- 
poses of  the  Amendment  are  to  define  citizenship  of  the 
United  States  and  of  the  states,  to  confer  citizenship  upon 
negroes,  to  secure  against  hostile  legislation  of  the  states 
those  privileges  and  immunities  which  are  common  to 
citizens  of  the  United  States,100  and  to  protect  all  natural 
persons  within  the  territorial  jurisdiction  of  the  United 
States,  without  regard  to  difference  of  race,  colour, 
nationality,  or  citizenship.1  The  Amendment  does  not 
confer  upon  women  the  right  of  suffrage,2  nor  the  right  to 
practice  law.3  The  provision  that  "no  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States''  protects,  it 
seems,  only  those  rights  which  are  secured  against  state 
encroachment  by  other  clauses  of  the  Constitution :  it  does 
not  extend  to  state  legislation  those  restrictions  which  the 
first  eight  Amendments  impose  upon  congressional  ac- 
tion.4 Within  the  meaning  of  the  Constitution,  due 
process  of  law  is  secured  when  the  laws  operate  on  all  alike 
and  no  one  is  subjected  to  an  arbitrary  exercise  of  the 
powers  of  government.  The  provision  does  not  control 

100  The  Slaughter  House  Cases,  16  Wall.  36.     See  also  Sec.  119,  supra. 

1  Yick  Wo  v.  Hopkins,  118  U.  S.  356. 

2  Minor  v.  Happersett,  21  Wall.  162. 
8Bradwell  v.  The  State,  16  Wall.  130. 

4  Maxwell  v.  Dow,  176  U.  S.  581.     See  also  Sec.  125,  supra. 


312  EIGHTS    OF    PERSONS   AND    OF    PROPERTY. 

mere  forms  of  procedure,  while,  on  the  other  hand,  the 
bare  observance  of  legal  forms  is  insufficient  when  the 
proceedings  are  manifestly  fraudulent.5  The  prohibition 
of  state  legislation  which  denies  to  any  person  the  equal 
protection  of  the  laws,  prevents  the  enactment  of  laws 
which  discriminate  unjustly  against  any  citizen,  although 
special  legislation,  as  such,  is  not  prohibited.6  And  while 
corporations  are  persons  within  the  meaning  of  the 
Amendment,7  yet  foreign  corporations  are  not  entitled 
to  such  equal  protection  of  the  laws  as  to  have  the  right  to 
do  business  within  a  state  without  being  hampered  by 
such  discriminating  conditions  as  the  state  may  choose  to 
impose.8 

The  equal  protection  of  the  laws. 

131.  The  provision  of  the  XIV  Amendment  that  no 
state  shall  "deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws"  requires  that  equal  se- 
curity be  given  to  all  under  like  circumstances  in  the  en- 
joyment of  their  personal  and  civil  rights.  The  officers  of 
a  municipality  may  not,  in  the  administration  of  an  ordi- 
nance regulating  the  carrying  on  of  a  lawful  business 
within  the  corporate  limits,  make  arbitrary  and  unjust 
discriminations,  founded  on  differences  of  race,  between 
persons  otherwise  similarly  placed.9  A  state  may  not, 
to  the  prejudice  of  a  coloured  man  who  is  put  upon  his 
trial  for  an  offense  against  its  laws,  refuse  to  other 
coloured  men  the  privilege  of  serving  upon  the  jury,  nor 
compel  such  prisoner  to  submit  to  a  trial  by  a  jury  from 
which  citizens  of  African  descent  are  by  reason  of  their 

r>  Sec.  117,  supra. 

6  Sec.  131,  infra. 

7  Sec.  127,  supra. 

8  Sec.  127,  supra. 

•Yick  Wo  v.  Hopkins,  118  U.  S.  356. 


THE    EQUAL   PROTECTION    OF    THE   LAWS.  313 

race  excluded ; 10  but  a  prisoner  cannot  insist  upon  having 
a  jury  composed,  either  in  part  or  in  whole,  of  his  own 
race,  for  all  that  he  can  rightfully  demand  is  a  jury  from 
which  men  of  his  race  are  not  excluded  because  of  their 
colour.11  A  state  may  not  require  railroad  companies  to 
transport  passengers  or  freight  at  unreasonably  low  rates, 
for  in  so  far  as  such  corporations  are  denied  the  right, 
while  others  are  permitted,  to  receive  reasonable  profits 
upon  their  invested  capital,  those  corporations  are  de- 
prived of  the  equal  protection  of  the  laws.12  So  also  a 
statute  is  unconstitutional  which  provides,  as  a  penalty 
upon  railroad  companies  for  failure  to  pay  certain  debts, 
that  parties  successfully  suing  the  companies  to  recover 
such  debts  shall  be  entitled  to  attorney's  fees,  but  which 
gives  to  the  companies  no  like  or  corresponding  benefit.13 
So  also  a  statute  is  unconstitutional  which,  although 
general  in  its  terms,  is  designed  to  limit  the  charges  of  a 
single  stockyards  company  and  which  does  not  limit  the 
charges  which  may  be  made  by  similar  companies  doing 
like  business.14  And  a  statute  is  unconstitutional  which 
prohibits  the  recovery  of  the  price  of  articles  sold  by  a 
trust  or  combination  formed  in  restraint  of  trade,  but 
which  does  not  apply  to  agricultural  products  or  live  stock 

"Strauder  v.  West  Virginia,  100  U.  S.  303;  Bush  v.  Kentucky,  107  id. 
110;  Gibson  v.  Mississippi,  162  id.  565;  Carter  v.  Texas,  177  id.  442; 
Eogers  v.  Alabama,  192  id.  226.  See  also  Ex  parte  Virginia,  100  id.  339; 
Brownfield  v.  South  Carolina,  189  id.  426. 

11  Virginia  v.  Eives,  100  U.  S.  313 ;  Bush  v.  Kentucky,  107  id.  110 ;  In  re 
Shibuya  Jugiro,  140  id.  291,  297;  Gibson  v.  Mississippi,  162  id.  565.     See 
also  Williams  v.  Mississippi,  170  id.  213;  Tarrance  v.  Florida,  188  id.  519. 

12  C.,  M.  &  St.  P.  Ey.  v.  Minnesota,  134  U.  S.  418;  Eeagan  v.  F.  L.  &  T. 
Co.,  154  id.  362;  Smyth  v.  Ames,  169  id.  466;  L.  S.  &  M.  S.  Ey.  v.  Smith, 
173  id.  684;  of.  L.  &  N.  E.  v.  Kentucky,  183  id.  503;  M.  &  St.  L.  E.  v. 
Minnesota,  186  id.  257. 

13  G.,  C.  &  S.  F.  Ey.  v.  Ellis,  165  U.  S.  150.     See,  however,  A.,  T.  &  S.  F. 
E.  v.  Matthews,  174  id.  96;  and  also  F.  M.  L.  Assn.  v.  Mettler,  185  id.  308; 
I.  L.  I.  Co.  v.  Lewis,  187  id.  335;  F.  &  M.  I.  Co.  v.  Dobney,  189  id.  301. 

14  Cotting  v.  K.  C.  S.  Y.  Co.,  183  U.  S.  79. 


314  EIGHTS    OF    PERSONS   AND    OF    PROPERTY. 

in  the  hands  of  the  producer  or  raiser.15     A  corporation 
is  a  person  within  the  meaning  of  the  Amendment.16 

But  a  law  is  presumptively  constitutional  whenever  it 
operates  alike  on  all  persons  and  property  similarly  situ- 
ated, and  while  a  state  may  not  make  a  classification  of 
the  objects  of  legislation  an  excuse  for  an  unjust  dis- 
crimination, or  the  oppression  or  spoliation  of  a  particular 
class,  yet  special  legislation,  as  such,  is  not  prohibited  by 
the  Amendment.17  A  state  may  grant  a  monopoly  of  the 
slaughtering  of  cattle.18  It  may  require  that  prior  to  the 
admission  to  its  territory  of  a  corporation  of  another  state, 

18  Connolly  v.  U.  S.  P.  Co.,  184  IT.  S.  540. 

16  Santa  Clara  County  v.  S.  P.  B.,  118  U.  S.  394;  P.  M.  Co.  v.  Pennsyl- 
vania, 125  id.  181 ;  G.,  C.  &  S.  F.  By.  v.  Ellis,  165  id.  150 ;  Smyth  v.  Ames, 
169  id.  466;  L.  S.  &  M.  S.  By.  v.  Smith,  173  id.  684;  M.  P.  By.  v.  Mackey, 
127  id.  205;  M.  &  St.  L.  By.  v.  Herrick,  ibid.  210;  M.  &  St.  L.  By.  v. 
Beckwith,  129  id.  26;  C.,  C.  &  A.  B.  v.  Gibbes,  142  id.  386;  C.  &  L.  T.  Co. 
v.  Sandford,  164  id.  578. 

17 ' '  Class  legislation,  discriminating  against  some  and  favouring  others,  is 
prohibited,  but  legislation  which,  in  carrying  out  a  public  purpose,  is  limited 
in  its  application,  if  within  the  sphere  of  its  operation  it  affects  alike  all 
persons  similarly  situated,  is  not  within  the  Amendment : ' '  Barbier  v.  Con- 
nolly, 113  U.  S.  32.  "Arbitrary  selection  can  never  be  justified  by  calling 
it  classification.  ...  It  is  apparent  that  the  mere  fact  of  classification  is 
not  sufficient  to  relieve  a  statute  from  the  reach  of  the  equality  clause  of  the 
XIV  Amendment,  and  that  in  all  cases  it  must  appear  not  only  that 
a  classification  has  been  made,  but  also  that  it  is  one  based  upon  some 
reasonable  ground — some  difference  which  bears  a  just  and  proper  relation 
to  the  attempted  classification — and  is  not  a  mere  arbitrary  selection:" 
G.,  C.  &  S.  F.  By.  v.  Ellis,  165  U.  S.  159,  165.  ' '  The  question  in  each  case 
is  whether  the  legislature  has  adopted  the  statute  in  exercise  of  a  reasonable 
discretion,  or  whether  its  action  be  a  mere  excuse  for  an  unjust  discrimina- 
tion, or  the  oppression  or  spoliation  of  a  particular  class : ' '  Holden  v.  Hardy, 
169  TJ.  S.  398.  "Classification  ...  is  not  invalid  because  not  depending 
on  scientific  or  marked  differences  in  things  or  persons  in  their  relations. 
It  suffices  if  it  is  practical,  and  is  not  reviewable  unless  palpably  arbitrary : ' ' 
O.  I.  Co.  v.  Daggs,  172  TJ.  S.  562.  ' '  The  very  idea  of  classification  is  that 
of  inequality,  so  that  it  goes  without  saying  that  the  fact  of  inequality  in 
no  manner  determines  the  matter  of  constitutionality:"  A.,  T.  &  S.  F.  B. 
v.  Matthews,  174  U.  S.  106. 

18  Slaughter  House  Cases,  16  Wall.  36. 


THE   EQUAL   PROTECTION    OF   THE   LAWS. 


315 


such  conditions  as  it  may  designate  shall  be  observed;19 
it  may  prohibit  a  white  and  a  negro  from  living  togther 
in  adultery  or  fornication  under  more  severe  penalties 
than  those  to  which  the  parties  would  be  subjected  were 
they  of  the  same  race  and  colour ; 20  it  may  classify  rail- 
roads for  the  purpose  of  regulating  fares,21  and  may  estab- 
lish reasonable  rates  of  fare ; 22  it  may  reasonably  limit 
the  rates  of  water  supply  companies ;  23  it  may  fix  the  tolls 
which  may  be  charged  by  turnpike  companies,24  and  the 
rates  which  may  be  charged  by  grain  elevator  com- 
panies,25 and  in  neither  case  is  it  necessary  that  the  regu- 
lations so  imposed  be  uniform  throughout  the  state;  it 
may  make  railroad  corporations,26  or  all  corporations,27 
liable  for  injuries  to  employees  caused  by  the  negligence 
of  fellow-employees;  it  may  prohibit  the  sale  of  oleo- 
margarine within  its  limits ; 28  it  may  prohibit  the  manu- 
facture and  sale  of  oleomargarine  which  contains  colour- 
ing matter,  although  permitting  the  use  of  colouring 
matter  in  butter;  29  it  may  authorize  municipalities  to  im- 
prove streets  and  to  assess  the  owners  of  adjoining  lots 

19  P.  M.  Co.  v.  Pennsylvania,  125  U.  S.  181;  H.  S.  M.  Co.  v.  New  York, 
143  id.  305;  New  York  v.  Koberts,  171  id.  658. 

20  Pace  v.  Alabama,  106  U.  S.  583. 

21  Dow  v.  Beidelman,  125  U.  S.  680. 

22  St.  L.  &  S.  F.  Ey.  v.  Gill,  156  U.  S.  649;  Eeagan  v.  F.  L.  &  T.  Co.,  154 
id.  362;   Smyth  v.  Ames,  171  id.  361;  M.  &  St.  L.  E.  v.  Minnesota,  186 
id.  257.     See  also  C.,  M.  &  St.  P.  Ey.  v.  Tompkins,  176  id.  167;  L.  &  N.  E. 
v.  Kentucky,  183  id.  503. 

23  Stanislaus  County  v.  S.  J.  &  K.  E.  C.  &  I.  Co.,  192  U.  S.  201. 

24  C.  &  L.  T.  Co.  v.  Sandford,  164  U.  S.  578. 

^Munn  v.  Illinois,  94  U.  S.  113,  two  justices  dissenting;  Budd  v.  New- 
York,  143  id.  517,  three  justices  dissenting;  Brass  v.  North  Dakota,  153  id. 
391,  four  justices  dissenting. 

26  M.  P.  Ey.  v.  Mackey,  127  U.  S.  205;  M.  &  St.  L.  Ey.  v.  Herrick,  ibid.  210. 

27  Tullis  v.  L.  E.  &  W.  E.,  175  U.  S.  348. 

28  Powell  v.  Pennsylvania,  127  U.  S.  678.     It  may  not,  however,  regulate 
commerce  by  prohibiting  the  sale,  in  original  packages,  of  oleomargarine 
brought  from  other  states:  Schollenberger  v.  Pennsylvania,  171  U.  S.  1. 

29  C.  C.  D.  Co.  v.  Ohio,  183  U.  S.  238. 

21 


316  EIGHTS    OF    PERSONS   AND    OF    PROPERTY. 

for  the  benefits  accruing  to  them  from  the  improvements  ;30 
and  it  may  provide  that  the  proposed  improvements  shall 
not  be  made  if  a  majority  of  the  resident  holders  of  ad- 
joining property  protest,  although  the  privilege  of  inter- 
ference is  not  given  to  non-residents,  where  there  is  no 
discrimination  in  the  assessment  for  the  improvements ; 31 
it  may  impose  upon  railroad  companies  liability  to  puni- 
tive damages  for  injuries  caused  by  their  omission  to 
fence  their  tracks  as  required  by  law;32  it  may  impose 
upon  railway  companies  alone  a  penalty  for  allowing  cer- 
tain weeds  to  go  to  seed  upon  their  right  of  way ; 33  it  may 
tax  corporate  securities  at  their  face  value,34  and  may 
classify  property  35  and  occupations  36  for  the  purpose  of 
taxation,  for  the  Amendment  was  not  intended  to  compel 
the  states  to  adopt  an  iron  rule  of  equal  taxation ;  it  may 
tax  all  companies  exercising  the  franchises  of  corpora- 
tions within  its  limits  on  the  privilege  of  exercising  those 
franchises ; 37  it  may  require  the  railroad  companies  of  the 
state  to  pay  the  expenses  of  the  state  railroad  commis- 
sion,38 and  the  electric  companies  to  pay  the  salaries  of 

80Walston  v.  Nevin,  128  U.  S.  578;  French  v.  B.  A.  P.  Co.,  181  id.  324; 
Detroit  v.  Parker,  ibid.  399;  .Shumate  v.  Heman,  ibid.  402;  Chadwick  v. 
Kelley,  187  id.  540 ;  Schaef er  v.  Werling,  188  id.  516 ;  cf.  Norwood  v.  Baker, 
172  id.  269. 

81  Field  v.  B.  A.  P.  Co.,  194  U.  S.  618. 

82  M.  P.  By.  v.  Humes,  115  U.  S.  512;  M.  &  St.  L.  By.  v.  Beckwith,  129 
id.  26 ;  M.  &  St.  L.  By.  v.  Emmons,  149  id.  364. 

83  M.,  K.  &  T.  By.  v.  May,  194  U.  S.  267.     Three  justices  dissented. 

84  B.  G.  B.  v.  Pennsylvania,  134  U.  S.  232;  Jennings  v.  C.  B.  C.  Co.,  147 
id.  147. 

35  Kentucky  B.  Tax  Cases,  115  U.  S.  321;  A.  Ex.  Co.  v.  Ohio,  165  id.  194; 
Magoun  v.  I.  T.  &  S.  Bank,  170  id.  283;  Orr  v.  Gilman,  183  id.  278;  F.  C.  & 
P.  B.  v.  Beynolds,  ibid.  471;  Billings  v.  lUinois,  188  id.  97;  Kidd  v.  Ala- 
bama, ibid.  730;  Missouri  v.  Dockery,  191  id.  165.     See  also  M.  &  M.  Bank 
v.  Pennsylvania,  167  id.  461 ;  Connolly  v.  U.  S.  P.  Co.,  184  id.  540. 

36  Giozza  v.  Tiernan,  148  U.  S.  657 ;  Clark  v.  Titusville,  184  id.  329. 

87  H.  I.  Co.  v.  New  York,  134  U.  S.  594. 

88  C.,  C.  &  A.  B.  v.  Gibbes,  142  U.  S.  386. 


THE    EQUAL   PKOTECTION    OF    THE   LAWS.  317 

the  subway  commissioners ; 39  it  may  provide  that  licenses 
to  sell  liquor  shall  not  be  granted  save  on  the  compliance 
by  the  applicant  with  certain  conditions,  which  conditions 
may  be  more  burdensome  than  those  imposed  upon  per- 
sons engaged  in  other  lines  of  business ; 40  it  may  allow 
a  county  or  smaller  district  to  prohibit  the  sale  of  liquor 
within  its  limits,  but,  discriminating  in  favour  of  pro- 
hibition, forbid  the  sale  in  the  smaller  district  when  it 
is  prohibited  by  the  county  containing  that  district ; 41  and 
it  may  allow  a  municipality  to  prohibit  the  sale  or  gift  of 
liquors  except  by  druggists,  manufacturers,  persons  who 
give  away  liquors  in  their  private  dwellings,  and  railway 
corporations  dispensing  liquors  in  their  cars  under  state 
license ; 42  it  may  apportion  the  movable  property  of  rail- 
roads among  its  counties  for  assessment  and  taxation 
without  so  apportioning  property  owned  by  other  corpora- 
tions or  by  individuals ; 43  it  may  require  all  railroad  com- 
panies to  remove  grade  crossings  under  certain  condi- 
tions ; 44  it  may  require  grain  elevator  companies  to  insure 
grain  stored  by  them ; 45  it  may  provide  that  persons  who 
have  been  before  convicted  of  crime  shall  suffer  severer 
punishment  for  subsequent  offenses  than  for  a  first  offense 
against  the  law ; 46  it  may  provide  that  lands  on  the  banks 
of  a  river  may  be  taken  for  levees  without  compensation, 
the  provision  applying  alike  to  all  owners  of  riparian 
lands ; 47  it  may  require  that  white  and  coloured  passen- 
gers on  railroads  within  the  state  be  transported  in  sepa- 

39  New  York  v.  Squire,  145  U.  S.  175. 

40  Giozza  v.  Tiernan,  148  U.  S.  657. 
41Eippey  v.  Texas,  193  U.  S.  504. 
42  Ohio  v.  Dollison,  194  TL  S.  445. 

48  C.  S.  By.  v.  Wright,  151  U.  S.  470. 

44  N.  Y.  &  N.  E.  E.  v.  Bristol,  151  U.  S.  556. 

45  Brass  v.  North  Dakota,  153  U.  S.  391. 

46  Moore  v.   Missouri,   159   U.   S.   673;    McDonald  v.  Massachusetts,   180 
id.  311. 

47  Eldridge  v.  Trezevant,  160  U.  S.  452. 


318  EIGHTS    OF   PERSONS   AND   OF   PROPERTY. 

rate  cars ; 48  it  may  provide  that  the  costs  in  actions  im- 
properly instituted  shall  be  borne  by  the  prosecutor ; 49 
it  may  make  railroad  companies  liable  in  damages  for  all 
fires  along  their  routes  caused  by  their  locomotives,50  and 
provide,  as  a  police  regulation,  that  in  an  action  to  recover 
such  damages  the  plaintiff,  if  successful,  shall  be  allowed 
a  reasonable  attorney's  fee;51  it  may  provide  that  in 
successful  actions  against  life  and  health  insurance  com- 
panies the  plaintiff  shall  be  allowed  an  attorney's  fee, 
although  a  similar  condition  is  not  imposed  on  other  in- 
surance companies  or  on  mutual  relief  associations ; 52  it 
may  allow  to  a  successful  plaintiff  an  attorney's  fee  in  a 
suit  on  a  policy  covering  real  estate  where  the  property 
has  been  totally  destroyed,  and  exclude  the  right  to  such 
fee  in  suits  to  enforce  policies  on  other  classes  of  property, 
or  where  there  has  not  been  a  total  destruction  of  the 
property  covered  by  the  insurance ; 53  it  may  provide  that 
under  certain  conditions  a  change  of  venue  shall  be 
allowed  to  a  party  suing  or  sued  by  a  corporation  having 
more  than  fifty  stockholders ; 54  it  may  provide  that  any 
person  who  drives  a  herd  over  a  public  highway,  where 
such  highway  is  constructed  on  a  hillside,  shall  be  liable 
for  all  damages  caused  by  such  animals,  without  imposing 
this  absolute  liability  on  those  who  move  animals  other- 
wise than  in  herds; 55  it  may  regulate  the  heating  of  steam 
passenger  cars,  although  at  the  same  time  it  declares  that 
the  regulations  shall  not  apply  to  railroads  less  than  fifty 

"Plessy  v.  Ferguson,  163  U.  S.  537. 

48  Lowe  v.  Kansas,  163  U.  S.  81. 

60  St.  L.  &  S.  F.  By.  v.  Mathews,  165  U.  S.  1. 

51  A.,  T.  &  S.  F.  E.  v.  Matthews,  174  U.  S.  96.     Four  justices  dissented. 

52  F.  M.  L.  Assn.  v.  Mettler,  185  U.  S.  308.     See  also  I.  L.  I.  Co.  v.  Lewis, 
187  id.  335. 

58  F.  &  M.  I.  Co.  v.  Dobney,  189  U.  S.  301.     Three  justices  dissented. 

54  C.  S.  Ey.  v.  Snell,  193  U.  S.  30. 

55  Jones  v.  Brim,  165  U.  S.  180. 


THE    EQUAL   PROTECTION    OF    THE    LAWS.  319 

miles  in  length ; 56  it  may  limit  the  hours  of  labour  in 
mines,57  and  on  public  contracts ; 58  it  may  commit  to  ad- 
ministrative officers  the  power  to  determine  the  right  of 
citizens  to  serve  as  jurors,  and  it  does  not  deny  to  any 
person  accused  of  crime  the  equal  protection  of  the  laws 
unless  discrimination  against  certain  classes  of  citizens  is 
shown  in  the  actual  administration  of  the  statute ; 59  it 
may  provide  that  in  suits  on  policies  of  fire  insurance 
the  defendant  shall  not  be  permitted  to  deny  that  the  value 
of  the  property  destroyed  was  that  set  forth  in  the  policy 
of  insurance,  although  no  such  provision  is  made  concern- 
ing insurance  against  the  destruction  of  property  from 
causes  other  than  fire ;  60  it  may  give  to  residents  priority 
over  non-resident  corporations  in  the  distribution  of  the 
assets  of  insolvent  debtors,  for  the  prohibition  relates 
only  to  the  denial  by  the  state  of  equal  protection  to 
persons  "within  its  jurisdiction;"61  it  may  provide  that 
if  on  the  day  of  discharge  of  any  railroad  employee  the 
wages  then  due  to  him  be  not  paid  the  railroad  shall  be 
subject  to  a  penalty;  62  it  may  provide  that  in  a  trial  for 
murder  the  court  may,  on  the  motion  of  either  the  state 
or  the  prisoner,  order  a  struck  jury,  and  that  in  such  case 
the  accused  shall  be  allowed  only  five  peremptory  chal- 
lenges, while  in  ordinary  trials  for  murder  the  accused 

56  N.  Y.,  N.  H.  &  H.  E.  v.  New  York,  165  U.  S.  628. 

57  Holden  v.  Hardy,  169  U.  S.  366.     Two  justices  dissented. 
58Atkin  v.  Kansas,  191  U.  S.  207.     Three  justices  dissented. 

69  Williams  v.  Mississippi,  170  U.  S.  213;  Tarrance  v.  Florida,  188  id. 
519;  cf.  Carter  v.  Texas,  177  id.  442;  Eogers  v.  Alabama,  192  id.  226. 
But  the  Amendment  does  not  protect  individuals  against  unauthorized  acts 
by  state  officials:  Barney  v.  City  of  New  York,  193  U.  S.  430.  See  also 
Arbuckle  v.  Blackburn,  191  id.  405. 

60  O.  I.  Co.  v.  Daggs,  172  U.  S.  557. 

61  Blake  v.  MteClung,  172  U.  S.  239;   Sully  v.  American  Nat.  Bank,  178 
id.  289. 

62  St.  L.,  I.  M.  &  St.  P.  Ey.  v.  Paul,  173  U.  S.  404. 


320  RIGHTS   OF   PERSONS   AND   OF   PROPERTY. 

shall  be  allowed  twenty  peremptory  challenges ; 63  it  may 
provide  for  the  indictment  of  prisoners  by  information 
and  their  trial  by  a  jury  composed  of  eight  instead  of 
twelve  jurors ;  64  it  may  declare  a  presumption  that  policy 
slips  are  held  for  an  unlawful  purpose  when  in  the  pos- 
session of  persons  other  than  public  officers ; 65  it  may 
authorize  municipalities  to  annex  adjoining  tracts  of  land 
used  for  other  than  agricultural  purposes ; 66  it  may  pro- 
hibit all  labour  on  Sunday  except  works  of  necessity  and 
charity,  providing,  as  a  matter  of  law,  that  the  keeping 
of  a  barber  shop  on  Sunday  shall  not  be  deemed  to  be 
a  work  of  necessity,  but  leaving  the  character  of  other 
kinds  of  labour  to  be  determined  as  questions  of  fact ; 67 
it  may  impose  a  license  tax  upon  persons  and  corpora- 
tions carrying  on  the  business  of  refining  sugar  and 
molasses,  while  exempting  from  such  taxation  planters 
who  refine  their  own  sugar  and  molasses ;  68  it  may  tax  per- 
sons who  are  engaged  in  hiring  labourers  to  be  employed 
beyond  the  limits  of  the  state,  although  no  such  tax  is  im- 
posed upon  the  business  of  hiring  persons  to  labour  within 
the  state ;  69  it  may  provide  that  misstatements,  other  than 
fraudulent,  in  answer  to  interrogatories  in  applications 
for  policies  of  life  insurance  shall  not  invalidate  policies 
issued  on  the  strength  of  those  answers; 70  it  may  establish 
two  district  criminal  courts  and  allow  to  the  state  an 
appeal  from  one  of  these  courts  although  not  allowing  to 
it  an  appeal  from  the  other ; 71  it  may  provide  that  the 

68  Brown  v.  New  Jersey,  175  U.  S.  172.     See  also  Hayes  v.  Missouri,  120 
id.  68. 

"Maxwell  v.  Dow,  176  U.  S.  581. 
65  Adams  v.  New  York,  192  U.  S.  585. 
68  Clark  v.  Kansas  City,  176  IT.  S.  114. 

67  Petit  v.  Minnesota,  177  U.  S.  164. 

68  A.  S.  E.  Co.  v.  Louisiana,  179  U.  S.  89. 

69  Williams  v.  Fears,  179  U.  S.  270. 

70  H.  M.  L.  I.  Co.  v.  Warren,,  181  U.  S.  73. 

71  Mallet  v.  North  Carolina,  181  U.  S.  589. 


THE    EQUAL   PROTECTION    OF    THE   LAWS.  321 

real  estate  of  corporations  shall  be  assessed  by  a  pro- 
cedure different  from  that  used  in  determining  the  value 
of  real  estate  owned  by  individuals ; 72  it  may  require  the 
assessement  of  railroad  property  which  escaped  taxation 
in  preceding  years,  without  providing  for  the  assessment 
of  other  property  which  escaped  taxation  in  the  same 
period ; 73  it  may  prohibit  railway  companies  from  charg- 
ing more  for  shorter  than  for  longer  hauls,  except  by  per- 
mission of  the  railroad  commission ; 74  it  may  prohibit  the 
making  of  options  for  the  purchase  or  sale  of  com- 
modities ; 75  it  may  prohibit  contracts  for  the  sale  of  cor- 
porate stock  on  margin ; 76  and  it  may  provide  for  the 
inspection  of  all  mines  in  which  more  than  five  men  are 
employed,  and,  after  stipulating  the  fees  to  be  charged 
by  the  inspectors,  permit  them  to  determine  the  number 
of  inspections  per  year  required  by  each  mine.77  So  also 
a  municipality  may  forbid  the  use  of  steam-power  by  rail- 
ways on  designated  streets  without  forbidding  its  use  by 
companies  which  traverse  other  streets  of  the  city ; 78  it 
may  forbid  washing  and  ironing  in  public  laundries  within 
definite  limits  between  prescribed  hours ; 79  it  may  pro- 
hibit the  keeping  of  a  private  market  within  six  squares  of 
a  public  market,80  and  it  may  forbid  the  maintenance 
of  a  cow  stable  within  municipal  limits  without  the  per- 
mission of  the  municipal  assembly.81  So  also  a  saloon- 
keeper may  be  denied  a  renewal  of  his  license  upon  the 

72  New  York  v.  Barker,  179  U.  S.  279.     See  also  F.  C.  &  P.  E.  v.  Eeynolds, 
183  id.  471. 

78  F.  C.  &  P.  E.  v.  Eeynolds,  183  TJ.  S.  471. 
74  L.  &  N.  E.  v.  Kentucky,  183  U.  S.  503. 
70  Booth  v.  Illinois,  184  TJ.  S.  425. 

76  Otis  v.  Parker,  187  U.  S.  606. 

77  St.  L.  C.  C.  Co.  v.  Illinois,  185  U.  S.  203. 
78Eailroad  Co.  v.  Eichmond,  96  U.  S.  521. 

79Barbier  v.  Connolly,  113  U.  S.  27;  Soon  Hing  v.  Crowley,  ibid.  703. 

80  Natal  v.  Louisiana,  139  U.  S.  621. 

81  Fischer  v.  St.  Louis,  194  U.  S.  361. 


322  EIGHTS    OF    PERSONS   AND    OF    PROPERTY. 

ground  that  he  is  not  a  suitable  person  to  conduct  the 
business ; 82  a  prisoner  may  be  tried  and  sentenced  by  a 
judge  de  facto  of  a  court  de  jure;  83  a  prisoner  convicted 
of  conspiracy  to  defraud  may  be  subjected  to  a  heavier 
sentence  than  is  imposed  on  a  co-conspirator;84  judicial 
procedure  may  be  regulated,  provided  the  same  course  of 
procedure  be  applied  to  all  persons  under  similar  condi- 
tions ; 85  a  board  of  education  which  has  not  sufficient 
funds  to  maintain  two  high  schools  may  exclude  negroes 
from  a  high  school  which  is  maintained  for  the  benefit  of 
white  students ; 86  and  a  mayor  may  be  given  authority 
to  grant  or  refuse  permission  to  move  buildings  along 
the  streets  of  a  city.87  The  power  of  enforcement  by 
appropriate  legislation,  vested  by  the  Amendment  in  Con- 
gress, does  not  authorize  congressional  legislation  with 
regard  to  individuals,  for  the  Amendment  restrains  state 
and  not  individual  action ;  it  has,  therefore,  been  held  that 
Section  5519,  Eevised  Statutes  of  the  United  States,  de- 
claring it  to  be  a  crime  punishable  by  fine  and  imprison- 
ment for  any  two  or  more  persons  to  conspire  to  deprive 
any  person  of  the  equal  protection  of  the  law  is  unconstitu- 
tional.88 It  has  also  been  held  that  the  Civil  Eights  legis- 
lation of  Congress  89  declaring  that  all  persons  within  the 
jurisdiction  of  the  United  States  shall  be  entitled  to  the 
full  and  equal  enjoyment  of  inns,  transportation  facilities, 
etc.,  and  subjecting  to  fine  and  imprisonment,  and  also  to 


82  Crowley  v.  Christensen,  137  IT.  S.  86. 
88  In  re  Manning,  139  IT.  S.  504. 


84  Howard  v.  Fleming,  191  U.  S.  126. 

85  Duncan  v.  Missouri,  152  U.  S.  377;  Tinsley  v.  Anderson,  171  id.  101; 
Maxwell  v.  Dow,  176  id.  581;  of.  Missouri  v.  Lewis,  101  id.  22;  Brown  v. 
New  Jersey,  175  id.  172;  Minder  v.  Georgia,  183  id.  559. 

86  Gumming  v.  Board  of  Education,  175  U.  S.  528. 

87  Wilson  v.  Eureka  City,  173  U.  S.  32.     See  also  Davis  v.  Massachusetts, 
167  id.  43  ;  Gundling  v.  Chicago,  177  id.  183. 

88  U.  S.  v.  Harris,  106  U.  S.  629. 

89  Act  1st  March,  1875,  18  Stat.  335. 


THE   POLICE   POWEK.  323 

a  liability  to  damages  in  an  action  at  law,  any  person  vio- 
lating the  provisions  of  the  statute,  is  unauthorized  by  the 
Amendment,  the  ground  of  decision  being  that  the  Amend- 
ment is  prohibitory  of  state  legislation  and  action,  and 
that,  therefore,  it  is  not  in  the  power  of  Congress  to 
directly  legislate  for  the  protection  of  individual  rights 
against  wrong  doing  by  individuals.90 

The  police  power. 

132.  The  police  power  is  that  function  of  government, 
by  the  exercise  of  which,  all  persons,  who  are  subject  to 
the  sovereignty  of  the  government  exercising  the  power, 
are,  for  ends  of  public  policy,  restrained  in  their  use,  or 
enjoyment,  of  some  right  of  person  or  of  property.  The 
police  power  may  attain  its  end  by  absolutely  prohibiting 
the  exercise  of  a  particular  right,  or  by  so  regulating  the 
exercise  of  that  right  as  to  permit  its  use  under  conditions, 
and,  if  the  power  exists,  the  extent  to  which  it  may  be 
exercised  in  any  case  is  limited  only  by  the  will  of  the 
government,  or  the  department  thereof,  in  which  the 
power  may  be  vested,  unless  a  restraint  be  imposed  by 
organic  law.  It  is  clear  that  the  United  States  cannot 
exercise  within  the  territory  of  a  state  any  portion  of  the 
state's  police  power,  but  it  is  equally  clear  that  the  United 
States  can  exercise  therein  whatever  of  the  police  power 
is  applicable  to  the  protection  or  regulation  of  the  rights  of 
person  or  of  property  which  are  granted  by  the  Constitu- 
tion of  the  United  States.  It  may  be  said  upon  one  side,  that 
the  autonomy  of  the  states  is  nothing  more  than  a  name,  if 
the  police  power  is  not  to  be  exclusively  exercised  by  them, 
and  that  the  constitutional  grant  to  the  United  States  of 
any  power  which  in  its  exercise  may  affect  the  internal 

80  Civil  Eights  Cases,  109  U.  S.  3.     See  also  Barney  v.  City  of  New  York, 
193  id.  430. 


324  BIGHTS    OF    PERSONS    AND    OF    PROPERTY. 

concerns  of  a  state  must  be  understood  to  have  been  made 
on  the  implied  condition  that  its  exercise  is  to  be  subject 
to  the  police  power  of  the  state.  It  may  be  said,  on  the 
other  side,  that,  as  the  power  of  police  involves  a  power 
not  only  to  control,  but  also  to  forbid,  the  powers  granted 
by  the  Constitution  to  the  United  States  would  be 
nugatory,  if  the  states  might  veto,  under  the  pretense  of 
regulating.  It  may  be  repeated  here  as  it  has  been  said  in 
another  connection,91  that  while  the  states  did  not,  by  the 
adoption  of  the  Constitution,  surrender  their  local  powers 
of  government,  yet,  nevertheless,  the  territorial  limits  of 
each  state 's  jurisdiction,  the  grant  to  the  United  States  of 
powers  conflicting  with  state  sovereignty,  and  a  due  regard 
to  the  right  of  citizens  of  other  states,  must  so  limit  each 
state's  otherwise  unlimited  police  powers,  that  those 
powers  shall  not  be  so  exercised  as  to  interfere  with  the 
full  exercise  of  the  powers  granted  to  the  United  States. 
Therefore,  persons  or  property  brought  within  the  terri- 
tory of  a  state  in  the  exercise  of  any  federal  right  are 
exempt  from  obstructive  state  control  until  the  federal 
power  shall  have  ceased  to  operate,  and  the  persons,  or 
property,  on  which  it  acted  shall  have  merged  in  the  mass 
of  persons,  or  property,  within  the  territory  of  the  state. 

91  Supra,  p.  70. 


CHAPTER   XII. 

THE   FEDEEAL    SUPEEMACY   AND    THE   EESEEVED   EIGHTS   OF 

THE  STATES. 

133.  The  results  of  federal  supremacy. 

134.  The  constitutional  reservation  of  the  rights  of  the  states. 

135.  The  nature  and  extent  of  those  reserved  rights. 

136.  The  importance  of  the  preservation  of  the  rights  of  both  the  United 

States  and  the  states. 

The  results  of  federal  supremacy. 

133.  A  consideration  of  the  cases  which  have  been  cited 
in  the  preceding  chapters  of  this  book  leads  to  the  con- 
clusion that  the  supremacy  of  the  government  of  the 
United  States,  within  its  constitutional  sphere  of  action, 
involves:  first,  the  exercise  of  judicial  power  by  the  gov- 
"e^mnenT  of  the  United  States  for  the  purposes  of  enforcing 
the  rights  created  by  the  Constitution,  laws,  and  treaties 
of  the  United  States,  of  punishing  offenses  against  the 
laws  of  that  government,  and  of  finally  determining  the 
judicial   construction   of  the   Constitution,   statutes,   and 

Treaties  of  the  United  States,  and  of  the  constitutions  and 
statutes  of  the  states,  so  far  as  regards  subjects  of  federal 
jurisdiction;  second,  the  exemption  of  all  property  and 
agencies  of  the  federal  government  from  state  control ;  and 
third,  the  non-exercise  by  the  states  of  powers  clashing 
with  the  powers  granted  by  the  Constitution  to  the  govern- 
ment of  the  United  States. 

The  constitutional  reservation  of  the  rights  of  the  states. 

134.  Articles  IX  and  X  of  the  Amendments  to  the  Con- 
stitution declare  that,  "the  enumeration  in  the  Constitu- 
tion of  certain  rights  shall  not  be  construed  to  deny 

325 


326          EESEEVED  EIGHTS  OF  THE  STATES. 

or  disparage  others  retained  by  the  people.  .  .  .  The 
powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  states,  are  reserved  to 
the  states  respectively,  or  to  the  people. ' '  If  these  Amend- 
ments had  never  been  adopted,  the  construction  of  the 
Constitution  as  a  whole  would  lead  inevitably  to  the  con- 
clusion that,  in  so  far  as  the  states  are  not  controlled  by 
the  expressed  or  implied  restrictions  contained  in  the 
Constitution  of  the  United  States,  they  may  severally 
exercise  all  the  powers  of  independent  governments.1 

The  nature  and  extent  of  those  reserved  rights. 

135.  The  nature  and  extent  of  the  reserved  rights  of  the 
states  must  be  determined  by  a  process  of  reasoning  by 
exclusion,  involving  a  statement  of  the  express  and  implied 
constitutional  restraints  upon  freedom  of  state  action,  and 
a  conclusion  that  any  state  may,  so  far  as  the  United  States 
are  concerned,  rightfully  exercise  every  power  of  govern- 
ment which  is  not  included  within  the  specific  restraints 
thus  enumerated.  A  consideration  of  the  terms  of  the 
Constitution  and  of  the  effect  of  the  judgments  of  the 
court,  which  have  been  cited  in  the  preceding  chapters  of 
this  book,  renders  it  easy  to  formulate  a  statement  of  the 
general  nature  of  the  constitutional  restraints  upon  the 
states.  By  force  of  those  restraints,  a  state  cannot  with- 
draw from  the  Union,  nor  deprive  itself  of  its  rights  as 
one  of  the  United  States,  nor  emancipate  itself  from  the 
constitutional  limitations  upon  freedom  of  state  action ;  it 
cannot  have  any  international  relations  with  foreign 
states,  nor  with  any  other  of  the  United  States;  it  can- 
not enter  into  treaties  with  foreign  powers,  nor  make 
interstate  compacts;  it  cannot  engage  in  war,  unless  ac- 
tually invaded,  or  in  such  imminent  danger  as  will  not 

1  Supra,  Section  3. 


NATUKE   AND    EXTENT    OF    RESEKVED    BIGHTS.  327 

admit  of  delay;  it  cannot  grant  letters  of  marque  and 
reprisal ;  it  cannot  adopt  any  other  than  a  republican  form 
of  state  government,2  nor  grant  any  title  of  nobility;  it 
cannot  prescribe  the  conditions  of  its  citizenship,  for  the 
birth  within  the  United  States  of  any  person  subject  to 
their  jurisdiction,  or  the  naturalization  of  any  person 
under  the  acts  of  Congress,  followed,  in  either  case,  by 
residence  within  a  state,  makes  the  person  so  born  or 
naturalized,  and  so  residing,  a  citizen  of  that  state ;  it  may 
not,  under  the  penalty  of  a  reduction  in  the  basis  of  repre- 
sentation, deny  or  abridge  the  right  to  vote  at  elections  for 
electors,  congressmen,  state  executive,  or  judicial  officers, 
or  legislators  of  any  male  inhabitant  twenty-one  years  of 
age  and  a  citizen  of  the  United  States;  it  cannot,  in  its 
regulation  of  the  exercise  of  the  right  of  suffrage  by  its 
citizens,  discriminate  because  of  race,  colour,  or  previous 
condition  of  servitude ;  it  cannot  in  its  action  with  regard 
to  its  own  citizens  or  with  regard  to  temporary  denizens 
within  its  territory,  abridge  those  privileges  or  immunities 
which  are  common  to  citizens  of  the  United  States,  nor 
deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  nor  deny  to  any  person  the  equal 
protection  of  the  laws ;  it  cannot  deny  to  citizens  of  other 
states  those  privileges  and  immunities  of  citizenship  which 
it  allows  to  its  own  citizens ;  it  cannot  control  or  regulate 
the  immigration  or  residence  of  aliens;  it  cannot  tax 
the  property  of  the  United  States,  nor  the  agencies  em- 

2  Section  4  of  Article  IV  of  the  Constitution  requires  the  United  States  to 
ff guaranty  to  every  state  in  this  Union  a  republican  form  of  government." 
It  rests  with  Congress  to  decide  what  government  is  the  established  one  in  a 
state,  and  also  to  determine  upon  the  means  proper  to  be  adopted  to  fulfil  the 
guaranty  of  a  republican  form  of  government  to  the  states:  Luther  v. 
Borden,  7  How.  1,  42.  See  also  Taylor  and  Marshall  v.  Beckham,  178  U.  S. 
548.  Chase,  C.  J.,  pointed  out  in  Texas  v.  White,  7  Wall.  727,  that  this 
constitutional  obligation  required  the  United  States,  after  the  suppression 
of  the  Eebellion,  to  re-establish  the  representation  in  Congress  of  the  states 
lately  in  rebellion. 


328  KESEKVED    EIGHTS    OF    THE    STATES. 

ployed  by  the  United  States  in  the  execution  of  its  consti- 
tutional powers  to  such  an  extent  as  to  interfere  with  the 
full  performance  by  such  agents  of  their  duties  to  the 
United  States,  nor  the  subjects  of  foreign  or  interstate 
commerce  in  such  a  manner  as  to  amount  to  a  regulation 
of  such  commerce,  nor  lay  any  imposts  or  duties  on  im- 
ports or  exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws,  nor  lay  any  duty  on  ton- 
nage; it  cannot  coin  money,  nor  emit  bills  of  credit,  nor 
make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts;  it  cannot,  by  any  law  or  by  any  act  to 
which  it,  by  its  enforcement  thereof,  gives  the  force  of  a 
law,  deprive  a  party  of  the  legal  right  of  enforcing,  or 
obtaining  compensation  for  the  breach  of,  an  express  and 
valid  contract,  executed  or  executory;  it  cannot  regulate 
commerce,  foreign  or  interstate,  or  with  the  Indian  tribes, 
by  obstructing  or  burdening,  or  discriminating  against, 
such  commerce;  it  cannot  exercise  judicial  jurisdiction 
over  persons  or  subject-matters  rightfully  withdrawn  by 
the  United  States  from  its  jurisdiction,  and  in  its  exercise 
of  jurisdiction  it  cannot  derogate  from  the  supremacy  of 
the  Constitution,  laws,  and  treaties  of  the  United  States, 
nor  fail  to  give  full  faith  and  credit  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  state ;  it 
cannot  pass  any  bill  of  attainder  or  ex  post  facto  law; 
and  it  cannot  so  exercise  its  powers  of  police  regulation 
as  to  interfere  with  the  exercise  of  the  constitutional 
powers  of  the  United  States,  or,  in  other  words,  in  such 
manner  as  to  operate  upon  persons  or  property  brought 
within  its  jurisdiction  in  the  exercise  of  powers  granted 
to  the  United  States,  before  such  persons  or  property  shall 
have  lost  their  distinctive  character  and  merged  in  the 
mass  of  persons  or  property  within  the  territory  of  the 
state.  Such  are  substantially  the  constitutional  restraints 
upon  the  powers  of  the  states ;  and  their  practical  effect  is 


BIGHTS    OF    UNITED    STATES    AND    THE    STATES.  329 

that,  while  limiting  the  powers  of  each  state  in  that  which 
concerns  foreign  nations,  and  in  that  which  affects  the 
interests  of  other  states,  and  of  the  citizens  of  those  other 
states,  it  yet  reserves  to  each  state  fnll  powers  of  self- 
government  in  all  that  affects  only  the  interests  of  that 
state  and  of  its  own  citizens. 

The  importance  of  the  preservation  of  the  rights  of  both 
the  United  States  and  the  states. 

136.  The  Constitution  was  the  result  of  a  struggle  be- 
tween contending  parties,  the  one  fearing  a  disintegration 
of  the  Union  as  a  consequence  of  the  weakness  of  the  con- 
federation, and  striving  to  create  a  nation,  and  the  other 
mindful  of  the  contest  for  the  independence  of  the  colonies, 
and  seeking  to  sacrifice  as  little  as  possible  of  the  autonomy 
of  the  states.  Fortunately  for  the  peace  and  prosperity  of 
the  country,  and  for  the  permanency  of  its  free  insti- 
tutions, neither  party  triumphed,  and  their  conflict  of 
opinion  gave  birth  to  a  government,  which,  though 
national  in  its  relations  to  foreign  powers,  and  in  the 
directness  of  its  action  upon  the  citizens  of  the  several 
states,  is  also  federal  in  its  reservation  to  the  states  and 
the  people  of  all  powers  not  expressly,  or  by  necessary 
implication,  granted  to  the  United  States.  The  distin- 
guishing characteristics  of  the  Constitution,  thus  created, 
are  the  limitation  in  terms  of  the  powers  confided  to  the 
United  States,  the  reservation  to  the  states  of  the  right 
of  local  self-government,  and  that  practical  conservatism, 
which  is  the  necessary  consequence  of  the  supremacy  of 
a  written  Constitution,  whose  manner  of  amendment 
guards  it  against  hasty  changes.  The  government  created 
by  that  Constitution  has  stood  the  tests  of  time  and 
growth ;  its  nationality  has  survived  the  shocks  of  foreign 
and  of  civil  war;  and  its  recognition  of  the  principle  of 


330  EESEEVED   EIGHTS   OF   THE    STATES. 

home  rule  has  overcome  the  disintegrating  tendencies  of 
the  expansion  of  territory  and  the  increase  of  population. 
That  in  the  future  as  in  the  past  the  United  States  may 
escape  the  perils  of  dissolution  and  the  dangers  of  con- 
solidation, it  is  necessary  that  its  Constitution  be  main- 
tained in  its  integrity,  and  that  the  reserved  rights  of  the 
states,  and  the  supremacy  of  the  United  States  within 
the  limits  of  its  delegated  powers,  be  alike  jealously 
guarded.  So  long  as  that  just  equipoise  of  federal  and 
of  state  power  shall  be  preserved,  and  so  long  as  the 
mass  of  the  people  shall  continue  to  be  God-fearing  and 
law-abiding,  and  shall  steadfastly  resist  any  usurpation 
of  power,  by  whomsoever  made,  the  United  States  will 
triumph  over  all  that  may  endanger  the  perpetuity  of 
their  free  institutions. 


INDEX. 

The  references  are  to  the  pages. 


ACTIONS. 

Against  the  United  States,  209,  212. 
Against  a  state  by  the  United  States,  209. 
Between  states,  211. 

Between  a  state  and  citizens  of  another  state,  213,  258. 
Between  citizens  of  different  states,  210,  215,  239. 
Legislation  affecting,  as  impairing  contracts,  142,  143. 
Legislation  affecting,  as  denying  due  process  of  law,  275,  279. 
See  also  JUDICIAL  POWER. 

ADMIEALTY. 

Jurisdiction  in,  206. 

AGENCIES. 

Federal,  state  taxation  of,  44. 
State,  federal  taxation  of,  39. 

ALIENS. 

Admission  and  naturalization  of,  291,  296. 

ALLIANCES. 

By  states  forbidden,  191. 

AMBASSADOBS. 

Jurisdiction  in  cases  affecting,  197,  206,  221. 

AMENDMENTS. 

First  eight  limit  only  federal  government,  258,  298. 
I,  309. 

IV,  245. 

V,  247,  251,  297. 

VI,  253. 

VII,  255. 

VIII,  257. 
XI,  258. 

XIII,  310. 

XIV,  purposes  of,  311. 
XIV,  citizenship,  290,  292. 

/  f  XIV,  privileges  and  immunities  of  citizenship,  298. 

331 


332  INDEX. 

The  references  are  to  the  pages. 

AMENDMENTS— Continued. 

XIV,  due  process  of  law,  273,  297. 
XIV,  equal  protection  of  the  laws,  312. 

XIV,  right  of  suffrage,  292. 

XV,  291,  293,  294,  295. 

APPELLATE  JURISDICTION.     See  JUDICIAL  POWER. 

ATTAINDER. 

Prohibition  of  bills  of,  182. 

Bills  of,  defined,  187. 

Bills  of,  illustrations  of,  188. 

BANKS,  NATIONAL. 

Power  of  Congress  to  create,  17. 
State  taxation  of,  48. 
Federal  taxation  of,  17,  23. 

BANKS,  STATE. 

Federal  taxation  of,  17,  40. 

BILLS  OF  ATTAINDER.     See  ATTAINDER. 

BILLS  OF  CEEDIT. 

Prohibition  of  state,  189. 
Definition  of,  189. 
Illustrations  of,  189,  190. 

BILLS  OF  EXCHANGE. 

Dealing  in,  taxable  by  states,  55,  62. 

BILLS  OF  LADING. 

State  taxation  of,  63. 

BRIDGES. 

Regulation  of,  82. 

CARRIERS.    See  RAILWAYS,  SHIPPING. 

CASES. 

Requisites  of  judicial,  228. 

See  also  ACTIONS,  JUDICIAL  POWER. 

CHARTERS. 

As  contracts,  163,  165,  168. 

Implied  contracts  in,  170,  173,  174,  176. 

CIRCUIT  COURTS  OF  THE  UNITED  STATES. 
Jurisdiction  of,  219,  221. 


INDEX.  333 

The  references  are  to  the  pages. 

CIRCUIT  COUETS  OF  APPEALS  OF  THE  UNITED  STATES. 
Jurisdiction  of,  219,  226. 

CITIZENS. 

Of  the  United  States,  290. 

Of  a  state,  291,  292. 

Privileges  and  immunities  of  citizens  of  the  United  States,   298. 

Privileges  and  immunities  of  citizens  of  one  state  within  another 

state,  300. 

Eight  to  vote  not  a  privilege  of  citizenship,  292. 
Discriminations  in  state  regulation  of  suffrage,  293. 
Eight  to  serve  on  juries,  295. 

CIVIL  EIGHTS. 

Federal  regulation  of,  unconstitutional,  322. 

CLASSIFICATION. 

Of  persons  or  property  for  purposes  of  state  legislation,  314. 
Uniformity  in  federal  taxation,  26,  35,  37. 

COLONIES.    See  TERRITORIES. 

COLOUEED  PEESONS. 

Separate  transportation,  98,  317. 

Exclusion  from  schools  for  white  students,  322. 

Federal  regulation  of  civil  rights  unconstitutional,  322. 

Eight  to  vote,  292. 

Eight  to  serve  on  juries,  295,  312. 

COMITY,  INTEESTATE.    See  ALLIANCES,  FULL  FAITH  AND  CREDIT. 

COMMEECE. 

Definition  of,  62. 

Eegulation  of,  59,  64. 

Constitutional  provisions  as  to,  59. 

Historical  reason  for  provisions,  61. 

Federal  statutes  regulating,  66. 

Limits  of  federal  and  state  regulation  of,  68. 

Taxation  as  regulation  of,  54,  90. 

Distinction  between  internal  and  foreign  or  interstate,  68. 

Internal  commerce,  70. 

With  Indian  tribes,  135. 

COMMON  LAW. 

Theory  of  judicial  system  under,  199. 
In  federal  courts,  239. 


334  INDEX. 

The  references  are  to  the  pages. 

COMPACTS  BETWEEN  STATES,  191. 

COMPENSATION. 

For  private  property  taken  for  public  use,  253,  277,  278. 

CONCUEEENT  JURISDICTION. 

Of  federal  and  state  courts,  217,  268. 

CONFLICT  OF  JURISDICTION. 

Between  federal  and  state  courts,  265. 

CONSTITUTION  OF  THE  UNITED  STATES. 

By  whom  ratified,  1. 
Effect  of  ratification  of,  1. 
Rules  of  construction  of,  233,  234. 
Supremacy  of,  325. 

CONSTRUCTION  OF  CONSTITUTION  AND  STATUTES. 
Rules  of,  232,  233. 

CONSULAR-COURTS. 

Establishment  of,  19,  246. 

CONSULS. 

Jurisdiction  in  cases  affecting,  197,  206,  221. 

CONTRACTS. 

Prohibition  of  impairment  of  obligation  of,  137. 
Prohibition  affects  only  state  laws,  137. 
"Law"  defined,  138. 


"Obligation"  defined,  142. 
"Contracts"  defined,  147. 


History  of  the  prohibition,  155. 

Judgments  of  state  courts,  as  to  non-existence  or  non-impairment, 

not  conclusive,  141. 
Contracts  made  by  states,  160. 
Contracts  made  by  political  subdivisions,  154. 
Contracts  of  states  with  political  subdivisions,  170. 
Regulation  of  remedies,  142. 
Judgments  as  contracts,  153. 
Charters  as  contracts,  162,  163,  170. 
Contracts  implied  in  charters,  170. 
Express  exemption  from  state  taxation,  52,  161. 
Implied  exemption  from  state  taxation,  52,  173. 
Express  grants  of  peculiar  privileges,  168. 
Implied  grants  of  peculiar  privileges,  174. 


INDEX.  335 

The  references  are  to  the  pages. 

CONTEACTS— Continued. 

Exemption  from  police  power,  176. 

Contracts  as  to  matters  of  public  concern,  178. 

Constitutional  prohibition  as  affecting  suits  against  states,  180. 

Force  and  effect  of  constitutional  prohibition,  181. 

CONTEACTS  IN  EESTEAINT  OF  TEADE. 

Under  Anti-trust  Act  and  at  common  law,  124. 

CONTEOVEESIES.     See  ACTIONS. 

COEPOEATIONS. 

Citizenship  of,  for  jurisdictional  purposes,  303. 
Not  citizens  within  meaning  of  Art.  IV,  sec.  2,  304. 
Persons  within  meaning  of  XIV  Amendment,  304,  314. 
Foreign,  303,  314. 

COUNSEL  FOE  DEFENSE. 
Eight  to,  254. 

COUETS,   FEDEEAL.    See  JUDICIAL  POWER;    SUPREME  COURT;   CIRCUIT 
COURTS  OF  APPEAL;  CIRCUIT  COURTS;  DISTRICT  COURTS. 

COUETS,  STATE.    See  JUDICIAL  POWER. 

COUBTS-MAETIAL. 

Jurisdiction  of,  243,  247. 

CEEDIT,  BILLS  OF.    See  BILLS  OP  CREDIT. 

CEIMES. 

Ex  post  facto  laws  prohibited,  182. 

Federal  judicial  procedure,  246-258. 

Due  process  of  law  in  state  judicial  procedure,  273-276,  280. 

Equal  protection  of  the  laws  in  state  judicial  procedure,  312,  317,  319, 

320,  322. 
Cruel  and  unusual  punishments,  257. 

CEUEL  AND  UNUSUAL  PUNISHMENTS. 
Prohibited,  257. 

CUEEENCY. 

Legal  tender,  20. 
Bills  of  credit,  189. 

DAMS. 

Eegulation  of,  82. 


336  INDEX. 

The  references  are  to  the  pages. 

DIRECT  TAXATION. 

By  United  States,  30. 

DISTRICT  COURTS  OF  THE  UNITED  STATES. 
Jurisdiction  of,  219,  222. 

DIVORCE. 

Not  impairment  of  contract,  148. 

Recognition  of  decrees  obtained  in  other  states,  283,  286. 

DUE  PROCESS  OF  LAW. 

Under  V  Amendment,  247,  297. 
Under  XIV  Amendment,  273,  311. 

DUTIES.    See  EXPORTS,  IMPORTS. 

EIGHTH  AMENDMENT. 

Cruel  and  unusual  punishments,  257. 

ELECTIONS. 

State  regulation  of,  292. 
Federal  regulation  of,  293,  295. 

ELEVENTH  AMENDMENT. 
Effect  of,  258. 

EQUAL  PROTECTION  OF  THE  LAWS. 
Right  to,  312. 

EXCISES. 

Requirement  of  uniformity  of,  35. 

EXPORTS. 

State  taxation  of,  43,  87. 

State  inspection  of,  89. 

Term  not  applicable  to  interstate  commerce,  73. 

Term  as  applied  to  commerce  with  Porto  Rico,  12,  27,  28,  37,  73. 

Taxation  of,  by  United  States,  28,  73. 

EX  POST  FACTO  LAWS. 
Prohibition  of,  182. 
Definitions  of,  184. 
Illustrations  of,  185. 

EXPRESSED  RESTRAINTS. 
On  states,  4. 


INDEX.  337 

The  references  are  to  the  pages. 

EXTEADITION. 

From  other  states,  193. 

FAITH  AND  CEEDIT. 

To  statutes,  records,  and  judgments  of  other  states,  280. 

FEEEIES. 

Taxation  of,  54,  57,  82. 
Eegulation  of,  81,  100. 

FIFTEENTH  AMENDMENT,  291,  293,  294,  295. 

FIFTH  AMENDMENT. 

Prosecution  upon  information,  247. 

Due  process  of  law,  247. 

Putting  twice  in  jeopardy,  251. 

Compelling  accused  to  be  a  witness  against  himself,  252. 

Compensation  for  property  taken,  253. 

FIEST  AMENDMENT,  309. 

FISHING. 

State  regulation  of,  72,  274,  299,  301. 

FOEEIGN  COEPOEATIONS. 

Eights  and  liabilities  of,  303. 

FOUETEENTH  AMENDMENT. 
Scope  of,  298,  311. 

As  defining  citizenship,  290,  291,  292. 
As  affecting  right  to  vote,  293,  294. 

Privileges  and  immunities  of  citizens  of  the  United  States,  298. 
Due  process  of  law,  273. 
Equal  protection  of  the  laws,  312. 

FOUETH  AMENDMENT,  246. 

FUGITIVES  FEOM  JUSTICE. 

State  obligations  as  to,  193. 

Jurisdiction  as  to  issue  of  habeas  corpus  in  cases  of,  194. 

FULL  FAITH  AND  CEEDIT. 

To  statutes,  records  and  judgments  of  other  states,  280. 

GEAND  JUEY.     See  INFORMATION. 

GEANTS. 

As  contracts,  160. 


338  INDEX. 

The  references  are  to  the  pages. 

HABEAS  COEPUS. 

In  cases  of  fugitives  from  justice,  194. 

In  cases  of  restraint  of  liberty  in  violation  of  the  Constitution,  225. 
In  cases  of  restraint  for  acts  done  in  pursuance  of  federal  author- 
ity, 214. 

HABBOUE  EEGULATIONS. 

By  states,  78. 

HEALTH  LAWS. 

Established  by  states,  80. 

IMMIGEANTS. 

Admission  of,  296. 

IMMUNITIES  OF  CITIZENSHIP.    See  CITIZENS. 
IMPAIEMENT  OF  CONTEACTS.    See  CONTRACTS. 

IMPEACHMENTS. 

Jurisdiction  in,  243. 

IMPLIED  POWEES. 

Denned,  3. 
Necessity  of,  15. 
Grant  of,  16. 
Illustrations  of,  17. 

IMPLIED  EESTEAINTS. 
On  states,  4,  6,  44. 

IMPOETS. 

State  taxation  of,  43,  87. 

State  prohibition  of  sale  of,  100. 

Federal  taxation  of,  66. 

Federal  prohibition  of,  66. 

Term  not  applicable  to  interstate  commerce,  87. 

"Imports"  into  Porto  Eico  from  United  States,  12,  27,  28,  37. 

"Imports'-  into  United  States  from  Porto  Eico,  12,  13,  37. 

IMPOSTS. 

State  imposition  of,  43. 

IMPEOVEMENTS  OF  NAVIGATION. 
Federal  power  over,  85. 

INCOME  TAX.  30. 


INDEX.  339 

The  references  are  to  the  pages. 

INDIAN  TRIBES. 

Not  states,  135,  213. 

Regulation  of  commerce  with,  135. 

Their  exercise  of  powers  not  restrained  by  V  Amendment,  247. 

INDICTMENT. 

After  submission  to  grand  jury  amendable  only  on  resubmission,  247. 

INFORMATION,  PROSECUTION  UPON. 
In  federal  trials,  12,  247. 
In  state  trials,  274,  320. 

INSOLVENT  LAWS. 

Effect  of  state,  150. 

INSPECTION  LAWS. 

State,  44,  89,  91,  280,  321. 
Federal,  251. 

INSURANCE. 

State  regulation  of  contracts  of,  63. 

State  regulation  of  suits  against  insurance  companies,  318,  319,  320. 

INTERSTATE  COMMERCE  ACT,  106. 
INTOXICANTS.    See  LIQUOR  LAWS. 

JEOPARDY. 

Putting  twice  in,  251. 

"JIM  CROW"  LEGISLATION,  98,  317,  322. 

JUDGES. 

Tenure  of  office  of  federal,  196. 

Compensation   of   federal,   not   diminishable   during   continuance   in 

office,  197. 
Character  of  federal  judiciary,  230. 

JUDICIAL  POWER. 

Necessity  of  federal,  203. 
Constitutional  provisions  as  to  federal,  196. 
Courts  of  the  United  States,  219. 
Federal  jurisdiction,  214. 
Exclusive  federal  jurisdiction,  217. 
Concurrent  federal  jurisdiction,  217,  268. 
Original  jurisdiction  of  federal  courts,  216,  220. 
Appellate  jurisdiction  of  federal  courts,  223. 
Removal  of  causes,  224,  227. 


340  INDEX. 

The  references  are  to  the  pages. 

JUDICIAL  POWEE — Continued. 

In  cases  in  law  and  equity  under  the  Constitution,  205. 
Jurisdiction  dependent  on  character  of  parties.     See  ACTIONS. 
Jurisdiction  as  to  political  questions,  228,  231. 
Jurisdiction  in  habeas  corpus.    See  HABEAS  CORPUS. 
Jurisdiction  in  admiralty,  206,  243,  269. 
Courts  martial,  243. 
Military  commissions,  243,  246,  249. 
Impeachments,  243,  244. 

Construction  of  Constitution  and  statutes,  232,  233. 
Limitation  of,  by  Amendments.     See  AMENDMENTS. 
Law  administered  in  federal  courts,  239. 
Eolations  between  federal  and  state  courts,  265. 
Judicial  power  of  the  states  as  affected  by  the  "full  faith  and 
credit"  clause,  280. 

JUDICIAL  SYSTEM. 

Theory  of,  under  common  law,  199. 

JUDGMENTS. 

As  contracts,  153. 

Effect  of,  in  other  states,  280. 

Scope  of,  of  courts,  237. 

JURISDICTION. 

Conflict  of,  between  state  and  federal  courts,  265. 
Of  federal  courts.     See  JUDICIAL  POWER. 

JURY. 

Trial  by,  not  to  be  taken  away  by  federal  government,  246,  249,  250, 

253,  255. 

Waiver  of  trial  by,  for  minor  offenses,  246,  254. 
Trial  in  state  courts,  274,  320. 
Discriminations  forbidden  in  state  regulation  of  jury  service,  295, 

312. 

JUST  COMPENSATION. 

For  private  property  taken  for  public  use,  253,  277,  278. 

LANDS. 

Public,  state  taxation  of,  45,  46. 

LAW  OF  THE  LAND,  4,  248. 

LEGAL  TENDER. 

Power  of  Congress  over,  20. 


INDEX.  341 

The  references  are  to  the  pages. 

LIBERTY. 

Religious,  309. 

Of  speech,  309. 

Deprivation  of,  without  due  process  of  law,  247,  250,  251,  280,  297. 

LIFE,  LIBERTY  AND  PROPERTY.     See  DUE  PROCESS  OP  LAW. 

LIMITATIONS,  STATUTES  OF. 
As  impairing  contracts,  143. 
As  denying  due  process  of  law,  275,  279. 

LIQUOR  LAWS. 

License  legislation,  317,  321. 
Local  option,  275,  317. 
Prohibition,  100,  278. 
Original  package  doctrine,  91,  93. 
Inspection,  90. 
Taxation,  92. 

LOTTERIES. 

Federal  legislation,  64. 
State  legislation,  178,  320. 

MILITARY  COMMISSIONS,  243. 

MONEY.    See  BILLS  OF  CREDIT,  LEGAL  TENDER. 

MONOPOLIES. 

Federal  legislation,  120. 

State  grants  of,  168,  169,  175,  178,  310,  314. 

State  restriction  of,  313. 

NATIONAL  BANKS. 

Power  of  Congress  to  create,  17. 
State  taxation  of,  48. 
Federal  taxation  of,  17,  23. 

NATURALIZATION. 

Regulation  of,  by  United  States,  291. 

State  courts  may  admit  to  citizenship  under  acts  of  Congress,  218,  291. 

NAVIGABLE  WATERS. 
Defined,  209. 
Title  to  land  under,  71. 
Improvements  of,  85. 


342  INDEX. 

The  references  are  to  the  pages. 

NAVIGATION. 

Eegulation  of,  by  United  States,  77. 
Regulation  of,  by  states,  77. 
Improvements  of,  85. 

NEGEOES.    See  COLOURED  PERSONS. 

OEDINANCE  OF  1787. 

Effect  of,  on  regulation  of  commerce,  84. 

OEIGINAL  JURISDICTION. 

Of  federal  courts,  216,  220. 

OEIGINAL  PACKAGE. 

Doctrine,  93. 

Taxation  of  goods  in,  see  also  88. 

PAINS  AND  PENALTIES. 

Prohibition  of  bills  of,  182,  188. 
Definition  of  bills  of,  188. 

PATENTS. 

Granted  by  United  States  do  not  exempt  from  state  taxation,  47. 
Granted  by  United  States  do  not  exempt  from  state  police  regula- 
tion, 70. 

Exclusive  license  to  use,  does  not  violate  Anti-trust  law,  123. 
Jurisdiction  of  state  courts  in  patent  cases,  269. 

PEESON,  EIGHTS  OF.    See  EIGHTS  OF  PERSON. 
PHILIPPINES.    See  TERRITORIES. 

PIEES. 

Eegulation  of,  87. 

PILOTAGE. 

Eegulation  of,  76. 

POLICE  POWEE. 

Definition  of,  323. 

Of  the  United  States,  323. 

Of  the  states,  323. 

POLICE  EEGULATION. 

As  affecting  commerce,  97. 
Exemption  by  contract  from,  176. 


INDEX.  343 

The  references  are  to  the  pages. 

POET  DUES. 

Imposition  of,  by  states,  75. 

POETO  EICO. 

Taxation,  12,  13,  27,  28,  37,  73. 
Immigration  from,  298. 

POET  EEGULATIONS. 

Established  by  states,  78. 

POETS,  PEEFEEENCES  OF,  73. 

PEEAMBLE  OF  THE  CONSTITUTION. 
Force  and  effect  of,  6. 

PEIVILEGES  AND  IMMUNITIES. 

Of  citizens  of  the  United  States,  298. 

Of  citizens  of  one  state  within  another  state,  300. 

PEOCESS  OF  LAW.    See  DUE  PROCESS  OP  LAW. 

PUBLIC  LANDS. 

State  taxation  of,  45,  46. 

QUAEANTINE  EEGULATIONS,  80. 

EAILWAYS. 

Federal  regulation  of  interstate  transportation  by,  106. 

State  regulation  of  interstate  transportation  by,  97. 

State  police  regulation  of,  97. 

State  taxation  of,  102. 

Tolls  for  use  of  improved  facilities  for  transportation,  102. 

EAILWAY  EATES,  STATE  EEGULATION  OF. 

As  limited  by  commerce  clause,  98,  101,  lOla. 
As  limited  by  contract,  164,  177,  178. 

As  limited  by  requirement  of  due  process  of  law,  lOla,  278. 
As  limited  by  requirement  of   equal  protection  of  the  laws,   lOla, 
313,  315,  321. 

EAILWAY  STATIONS. 

State  regulations  concerning,  99,  100,  101. 

EATIFICATION  OF  CONSTITUTION. 
Effect  of,  1. 

EECOEDS. 

Proof  of,  in  other  states,  280. 


344  INDEX. 

The  references  are  to  the  pages. 

REGULATION. 

Of  commerce.     See  COMMERCE. 
Of  remedy.     See  CONTRACTS. 

RELATION  BETWEEN  THE  GOVERNMENTS,  1. 

EELATION  BETWEEN  FEDERAL  AND  STATE  COURTS,  265. 

RELIGION. 

Establishment  of,  309. 

REMEDY,  REGULATION  OF.     See  CONTRACTS. 
REMOVAL  OF  CAUSES,  224,  227. 

REPUBLICAN  FORM   OF  GOVERNMENT. 
Guaranteed  to  the  states,  327. 

RESERVED  POWERS  AND  RIGHTS. 
Of  the  states,  2,  325,  326. 

RESTRAINTS  UPON  STATES,  4. 

RETROSPECTIVE  LAWS. 

Not  prohibited,  182,  183. 

RIGHTS  OF  PERSON  AND  OF  PROPERTY. 
State  control  over,  298. 
As  protected  by  V  Amendment,  247. 
As  protected  by  XIV  Amendment,  273,  311,  312. 

RULES  OF  CONSTRUCTION. 

Of  Constitution  and  statutes,  232,  233. 

SEARCHES  AND  SEIZURES. 

Unreasonable,  by  federal  officers,  prohibited,  246. 

SECESSION. 

Unconstitutionality  of,  1. 

SELF-GOVERNMENT. 

Reservation  to  the  states  of  right  of,  in  local  matters,  329. 

SEVENTH  AMENDMENT,  255. 

SHIPPING. 

Regulation  of,  by  United  States,  77. 
Regulation  of,  by  states,  77. 
State  taxation  of,  57,  106. 

SIXTH  AMENDMENT,  253. 


INDEX.  345 

The  references  are  to  the  pages. 

SLAVEEY. 

Abolished  by  XIII  Amendment,  310. 

STATES,  THE. 

Existence  of,  before  the  Constitution,  2. 

Independent  of  each  other,  so  far  as  not  controlled  by  Constitu- 
tion, 2. 

Powers  and  obligations  of  new,  2. 

Eestraints  upon,  4. 

Taxation  by,  40. 

Suits  against,  as  affected  by  contracts,  180. 

Suits  against,  as  affected  by  XI  Amendment,  214,  258. 

Judicial  power  of,  as  affected  by  the  federal  supremacy,  232,  265. 

Judicial  power  of,  as  affected  by  the  grant  of  judicial  power  to  the 
United  States,  270. 

Judicial  power  of,  as  affected  by  the  XIV  Amendment,  273. 

Eeserved  rights  of,  2,  325,  326. 

Necessity  for  maintenance  of  rights  of,  329. 

STATE  AGENCIES. 

Federal  taxation  of,  39. 

STATE  BANKS. 

Federal  taxation  of,  17,  40. 

STATE  COUETS.    See  JUDICIAL  POWER. 
SUITS.    See  ACTIONS,  JUDICIAL  POWER. 

SUPEEMACY  OF  THE  UNITED  STATES. 
State  taxation  affected  by  the,  44. 

State  regulation  of  federal  judicial  process  or  practice,  265. 
Supremacy  of  the  Constitution,  3,  232. 
Supremacy  of  the  laws  of  the  United  States,  3,  233. 
Supremacy  of  the  treaties  of  the  United  States,  3,  238. 
Eesults  of  the,  325. 

SUPEEME  COUET. 

Jurisdiction  of,  219. 
Constitution  of,  220. 
Appeals  to,  226. 
See  also  JUDICIAL  POWER. 

TAXATION. 

Defined,  22. 

Power  of,  in  whom  vested,  22. 

Charges  which  are  not  taxes,  23,  39. 

Not  to  be  imposed  for  private  purposes,  24. 


346  INDEX. 

The  references  are  to  the  pages. 

TAXATION,  FEDEEAL. 

Constitutional  provisions  as  to,  25. 

Bestrictions  upon,  26. 

Uniformity  of,  35. 

Direct,  30. 

Of  imports  and  exports,  28,  29,  87. 

In  the  territories,  12,  26,  27,  28,  37. 

Of  state  agencies,  39. 

TAXATION,  STATE. 

General  power  of,  40. 

Illustrations  of  power  of,  40,  41. 

Expressed  restraints  on,  43. 

Implied  restraints  on,  44. 

Of  federal  agencies,  44. 

Of  national  banks,  48. 

Of  imports,  88. 

Of  goods  from  other  states,  43,  90. 

Of  persons  and  property  beyond  its  territory,  41,  42. 

As  affected  by  contracts  of  exemption,  52. 

As  a  regulation  of  commerce,  54. 

Denial  of  due  process  of  law  in,  277. 

Denial  of  equal  protection  of  the  laws  in,  41,  316,  317,  320,  321. 

TELEGEAPHS. 

Eegulation  of,  133. 

State  taxation  of,  40,  134. 

TEEEITOEIES. 

Congressional  power  over,  7. 
Taxation  in,  12,  26,  27,  28,  37,  73. 
Trial  by  jury  in,  10,  12. 

THIETEENTH  AMENDMENT. 

Slavery  and  involuntary  servitude  prohibited  by,  310. 

TITLES  OF  NOBILITY. 

Not  to  be  granted  by  the  states,  327. 

TONNAGE. 

Defined,  74. 

State  duties  upon,  43,  44,  74. 

TEADE-MAEKS. 

Federal  regulation  of,  63. 


INDEX.  347 

The  references  are  to  the  pages. 

TEANSIT. 

Eight  of,  not  limitable  by  state  taxation,  47,  104. 

TEANSPOETATION.    See  EAILWAYS,  SHIPPING. 

TEEATIES. 

Supremacy  of,  238. 

TEIAL  BY  JUEY.     See  JURY. 
TEIBES.    See  INDIAN  TRIBES. 

TEUSTS. 

Necessity  of,  114. 
Anti-trust  law,  120. 

TWICE  IN  JEOPAEDY,  251. 
UNIFOEMITY.    See  CLASSIFICATION. 

UNION. 

Indissolubility  of,  1. 

UNITED  STATES. 

Limited  powers  of,  2. 
Supremacy  of,  3,  325. 

VOTEES.    See  CITIZENS. 

WAEEANTS. 

Eequisites  to  issue  of  search,  246. 

WATEE-WAYS.    See  NAVIGABLE  WATERS. 

WHAEVES. 

State  regulation  of,  83,  87. 

WITNESSES. 

Eight  of  accused  to  be  confronted  with,  254. 

Eight  of  accused  to  have  compulsory  process  for  obtaining,  254. 


^ 


14  DAY  USE 

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MAR  18 '64 -iO 


KEC'D  LD 

OCTll'65-lPM 


LD  2lA-40m-ll.'63 
(E1602slO)476B 


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University  of  California 

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